Response From DPS Regarding Policies When Encountering CHLer

[steveincowtown]

As promised from my FOIA request:

TEXAS DEPARTMENT OF PUBLIC SAFETY
5805 N LAMAR BLVD  BOX 4087  AUSTIN, TEXAS 78773-0001
512/424-2000
http://www.dps.texas.gov" onclick="window.open(this.href);return false;
STEVEN C. McCRAW COMMISSION
DIRECTOR A. CYNTHIA LEON, CHAIR
DAVID G. BAKER CARIN MARCY BARTH
CHERYL MacBRIDE ADA BROWN
DEPUTY DIRECTORS ALLAN B. POLUNSKY
December 12, 2012
Via Email
steveincowtown
RE: Public Information Request for provide me with copies of any internal communications relating to the Official policy of the DPS when encountering a CHL holder (PIR # 12-3994)
Mr. Steveincowtown:
The Department received your above-referenced request on November 28, 2012. Please find enclosed the information the Department located in response to your request. These records are provided to you at no cost. There is no Department policy addressing when an officer should or should not disarm a CHL holder. Attached are the policies that the Department has that discuss disposition of property in our custody and checking a firearm for a possible stolen report.
If you have any questions regarding this request, please submit them in writing via facsimile to (512) 424-5716, via email to OGC.Webmaster@dps.texas.gov, via mail to the address in the letterhead, or in person at our offices at 5805 N. Lamar Blvd. in Austin. Thank you.
Cordially,
Michele Freeland
Legal Assistant
\\hqogcs001\ORA\2012 requests\12-3994\12-3994 (12-12-12) letter to requestor
24.05.02
b. This policy does not preclude, forbid, or control the
forced opening of any container or compartment under
some other legal authority independent of an inventory
purpose, such as consent, warrant, probable cause, etc.
c. An exception to this policy is in investigations arising
under Article 17ge, V.T.C.S. (Texas Racing Act).
Warrantless seizures of contraband or evidence, pursuant
to this Act or its rules, may be documented utilizing Texas
Racing Commission (TRC) inventory/receipt form in lieu of
agency forms HQ-l 09 and HQ-l 09b. Dispositions of such
property may be documented in the 'chain of custody"
section on the TRC document in lieu of HQ-l 09b. All other
policy provisions of this chapter (HQ-l09a - property logs,
property tags, storage, etc.) remain applicable. (For
details, refer to the Criminal Law Enforcement Division
ManuaL)
3. Controlled Substances and Dangerous Drugs.
Contraband that comes into a DPS officer's possession, for
any reason, shall be submitted to a crime laboratory for
analysis and/or destruction as soon as practical and not later
than three (3) working days of the seizure unless authorized
additional time by the employee's supervisor. The only other
exceptions will be large seizures that are to be destroyed by
cou rt order.
4. Drug Paraphernalia. Items subject to seizure shall be
stored in either central or resident storage until disposed of in
accordance with the proviSions of the Controlled Substances
Act
5. UNDER NO CIRCUMSTANCES WILL ANY ENTRUSTED
PROPERTY BE APPROPRIATED FOR PERSONAL USE.
6. Non-Evidentiary Items. When it becomes the responsibility
of an officer of the Department of Public Safety to take
care of the property of a citizen, as in the case of an accident,
the officer shall make an itemized list of all items removed
from the vehicle or person and identify them with the vehicle
make, vehicle identification number, and license number
and/or information as necessary to properly identify from
whom the items were taken. (See Annex #1, HQ-W9.)
a. Depending upon location and circumstances, he may
turn the valuables over to a responsible official such as a
judge, police chief, or sheriff, or remove them to the station
or district office.
b. If the officer should deliver the property to another person,
the officer must have the official or other person
receipt the list of items on the form used to inventory the
items.
c. If the officer retains the articles, he shall keep them
24-2
under lock and key until they can be delivered to the rightful
owner, from whom he must obtain a receipt.
d. The officer shall file all property inventories and receipts
as a Department record.
7. Evidentiary Items. All articles or items of evidence seized
by an officer of the Department of Public Safety shall be
inventoried and properly identified, marked, labeled, stored,
and secured until such time as legal disposition or proper
adjudication of the case, or cases, has been made. The offi·
cer shall file a property inventory, HQ-l09, and enter the
property in the entrusted property log, HQ-l08, as a
Department record in addition to the following :
a. STOLEN PROPERTY. Code of Criminal Procedure,
Article 47.03, Schedule. When an officer seizes property
alleged to have been stolen, he shall immediately file a
schedule of the same, and its value, with a magistrate or
court having jurisdiction ot the case, certifying that the
property has been seized by him, and the reason theretore.
(See Annex #1, HQ-l06, striking through the nonapplicable
sections.)
b. MOTOR VEHICLES. Transportation Code Section
501.158 applies to motor vehicles where the serial number,
the motor number, or the manutacturer's permanent
vehicle identification number or derivative number thereof
has been removed, changed, or obliterated. If the seizure
under this Subsection is not made pursuant to a search
warrant, the arresting officer shall prepare and deliver to a
magistrate a written inventory of each motor vehicle or
part of a motor vehicle seized. (See Annex #1, HQ-l06,
striking through the non-applicable sections.)
c. WEAPONS. (Code ot Criminal Procedure, Article
18.19.) When weapons are seized in connection with an
offense involving the use of a weapon or an offense under
Penal Code Chapter 46 and the seizure is not made pursuant
to a search or arrest warrant, the person seizing the
same shall prepare and deliver to a magistrate a written
Inventory at each weapon seized. (See Annex #1 HQ114.)
6. Seized Assets. State and federal laws provide for the
seizure and torfeiture ot assets in certain narrow circumstances.
The main purpose of asset seizure and torfeiture is
to deprive criminals ot the proceeds of their criminal acts.
The Asset Forfeiture Unit (AFU) will be responsible for
recording and tracking all assets seized by the Department
through the torfeiture process and tinal disposition. This
includes assets seized by another government entity it the
Department retains an interest in the disposition of the property,
regardless of the physical location of the assets.
11-20-09
If a property officer dies, moves, or leaves the Department, the next in·line supervisor will conduct an inventory.
05.07 Assistant Property Officer
1.
Qualifications. The requirements for this position and the number needed will be determined by the regional commander, district commander, and/or service commander.
2.
Duties. Central custodian during absences of the proper· ty officer.
05.08 Resident Property Officer
1.
Qualifications. Personnel who are unable to use central storage due to the geographical location of their duty station.
2.
Duties. Responsible for the security and control of entrust· ed property maintained in resident storage.
05.09 Disposition of Property Not Returned to Owner or Responsible Person. Members of the Department will familiarize themselves with, and be directed by, provisions of the Code of Criminal Procedure (CCP) and Texas Penal Code (PC), as amended, concerning disposition of property.
1.
Abandoned or Unclaimed Property. Article 18.17, CCP. A receipt for the property will be obtained and placed in the inventory file.
2.
Stolen Property, Chapter 47, CCP.
3.
Gambling Paraphernalia, Prohibited Weapon, Criminal Instrument. Article 18.18, CCP.
4.
Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.
a.
A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114.
b.
The proper inventory form, HQ-109 or HQ-1 09a, will be completed describing the weapon seized with a copy pro· vided to the person or responsible party from whom it is taken.
24.05.07 -05.10
c.
The proper court order HQ-106 or HQ-114 will be completed.
d.
The weapon will be tagged using the HQ-113.
e.
After all documentation is secured the weapon will be logged and placed into entrusted property storage.
f.
When disposition of any weapon falls within the scope of Article 18.18 or Article 18.19 DPS personnel will seek a court order awarding the weapon to the DPS for destruc· tion. (See Annex #3, HQ-26 for Prohibited Weapons and HQ-27 for weapons seized for offenses under Chapter 46, Penal Code.)
g.
All firearms seized for evidentiary purposes pursuant to a criminal offense should be submitted to the appropriate crime laboratory (National Integrated Ballistic Information Network -NIBIN) for forensic testing of the weapon. Once the testing has been completed the firearm will be returned to the submitting officer. The chain of custody shall be properly documented and the weapon logged in and out of entrusted property storage during this process. (DPS maintained NIBIN sites are as follows: Tyler, Austin, Lubbock, EI Paso, and McAllen Crime labs). Weapons may be submitted to DPS sites or Non-DPS sites wh ich offer NIBIN testing.
h.
Except in rare circumstances, all firearms awarded to the Department will be transferred to the DPS General Stores for destruction. Firearms awarded to the Department may not be retained for Department use with· out prior approval from the Assistant Director of the appropriate Division. No weapon awarded to the Department will be sold.
j.
All documentation pertaining to the seized weapon will be maintained in a single folder or binder and retained for a period of three years beyond the date that the weapon is ordered disposed.
5-6-10 24-5

Also, if anyone mods or other know a better format to post this in please repost in this thread.

[RoyGBiv]

When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.

Pretty clear, that is.

[steveincowtown]

When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.

Pretty clear, that is.

Not good.

Mr. Cotton or other smart lawyers on the board:

Is this something that can be addressed by legislation, or it is a matter of policy which will require a lawsuit to change?

[WildBill]

Steve - Thanks for posting this.

[gigag04]

Yeah that language:

"Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report."

..is how they are getting there. However, it is a stretch because the tagging procedures following that are not followed roadside I would guess.

[WildBill]

Yeah that language:

"Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report."

..is how they are getting there. However, it is a stretch because the tagging procedures following that are not followed roadside I would guess.

I don't understand what you are saying. Could you explain that a little bit?

[puma guy]

Yeah that language:

"Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report."

..is how they are getting there. However, it is a stretch because the tagging procedures following that are not followed roadside I would guess.

I don't understand what you are saying. Could you explain that a little bit?

I agree with WB. I need clarification. The way I read it tagging, inventorying, forms, etc are for seized weapons, but a check can be made by the officer when taking possession. Help!

[Heartland Patriot]

Yeah that language:

"Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report."

..is how they are getting there. However, it is a stretch because the tagging procedures following that are not followed roadside I would guess.

I understand (I think) what you are saying. They are doing ONE part of the "taken into custody" procedure at roadside (running the firearm in NCIC), but not following the rest of the procedure...so they are using only ONE PART of something that should happen when its truly "taken into custody" to justify the checks. Not cool.

[E.Marquez]

Yeah that language:

"Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report."

..is how they are getting there. However, it is a stretch because the tagging procedures following that are not followed roadside I would guess.

I don't understand what you are saying. Could you explain that a little bit?

I agree with WB. I need clarification. The way I read it tagging, inventorying, forms, etc are for seized weapons, but a check can be made by the officer when taking possession. Help!

The way Im reading it, when you look at BOTH A & B sub paragraphs of 5.10

Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.
a.
A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114.
b.
The proper inventory form, HQ-109 or HQ-1 09a, will be completed describing the weapon seized with a copy provided to the person or responsible party from whom it is taken.

Is each LEO who uses Article 18.19, CCP, and Chapter 46, PC. 05.10 Weapons, para 1 as justification to seize a weapon and run a NCIC check, ALSO complying with the para a & b. in that same section??

The suggestion is, they are not.

[thatguy]

1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.
a.
A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114.

This does not clarify under what guidelines a LEO, DPS or otherwise is going to disarm me. The rule does not say or even imply that the officer HAS to disarm me, only that if he/she does they HAVE to run a NCIC check and only if it is held do they have to attach a copy...INAL.

[E.Marquez]

1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.
a.
A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114.

This does not clarify under what guidelines a LEO, DPS or otherwise is going to disarm me. The rule does not say or even imply that the officer HAS to disarm me, only that if he/she does they HAVE to run a NCIC check and only if it is held do they have to attach a copy...INAL.

It's two different things and parts of the discussion as i see it.
Authority for disarming and Authority for the NCIC check.


Authority for disarming=

GC §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

Authority for the NCIC check =

Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.
a.
A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114.
b.
The proper inventory form, HQ-109 or HQ-1 09a, will be completed describing the weapon seized with a copy provided to the person or responsible party from whom it is taken.

Authority for disarming seems easy for most any LEO to articulate, even if later a judge, ADA, peer might disagree.. it's a individual "feeling" on the side of the road.

Authority for the NCIC check also now seems clear....BUT that code seems to require MORE then just taking the weapon and running a NCIC check,, it seems to REQUIRE the actions of para 1.a. and 1.b. in Article 18.19, CCP, and Chapter 46, PC.
05.10

Of course IANAL and may not understand the law, and way a LEO is allowed to pick and choose which parts of the CCP he can use or not within the same section.

[C-dub]

What does this mean if I'm stopped and a DPS officer tells me he is going to disarm me and check to see if my gun is stolen? Would it be a good idea to remind the officer that I will need a copy of the HQ-109 or HQ-109a per

Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.
05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.
a.
A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114.
b.
The proper inventory form, HQ-109 or HQ-1 09a, will be completed describing the weapon seized with a copy provided to the person or responsible party from whom it is taken.

prior to him seizing my gun and request copies of the NCIC check and form HQ-106 or HQ-114, whichever is used? Or would it be better to wait until afterward and then ask for those forms? What should a person do if all they get is, "Have a nice day" or less and the officer get's back in their car and drives off leaving my gun in pieces in the back seat?

[57Coastie]

There may be some differences of opinion here between the DPS and some forum members as to when a "search" becomes a "seizure." If an officer disarms a CHLer, for whatever reason (not the issue here), simply checks the serial number and gives the weapon back to the CHLer, is that a "seizure" of the weapon?" Similarly, has the weapon "come into the possession" of the officer while he checks with NCIC?

It appears to me that these two questions beg for an answer from the DPS.

The DPS position on this may, however, be shown by the language "A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114."

Jim

[jimlongley]

What does this mean if I'm stopped and a DPS officer tells me he is going to disarm me and check to see if my gun is stolen? . . .

The way I see it, coming into possession of your gun "for any reason" would be the excuse they are using for disarming a CHL in order to check NCIC status. If they take possession of the gun to check its NCIC status, then since they have possession of it they must check its NCIC status.

That's just the sort of logic that begs for and Attorney General opinion. Whether or not it is written policy, I would be willing to bet there are (top officers, ie chiefs, sergeants, watch commanders, etc) who verbally express that ALL CHLs will be disarmed, and because they then have possession of the gun, they must run an NCIC check.

IMHO, using the NCIC check as a reason for disarming, which according to anecdote on here and in other fora has been happening, is not valid. The only valid reason is " the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual" which does not include running an NCIC check. And, as I said before, who decides what "reasonably" means?

I suppose a truly disingenuous officer or attorney could attempt to make a case that since they had the CHL holder "in their possession" that they, by extension, therefore had the concealed firearm in their possession and thus had to run an NCIC check, but that sounds to me more like drunken teenager stopped on the beach logic than actual LEO good sense.

And of course the cynic in me, plus decades of observing politicians and officials, says that they are not going to turn over the actual policy in a simple FOIA request, that such information, if it is truly in writing, will be in some other obscure section of the regs that someone fporgot to include. There is nothing in there that states that the officer shall not disarm a CHL except under the circumstances described in 411.207, and that leaves a lot of room for weaseling around.

[E.Marquez]

There may be some differences of opinion here between the DPS and some forum members as to when a "search" becomes a "seizure." If an officer disarms a CHLer, for whatever reason (not the issue here), simply checks the serial number and gives the weapon back to the CHLer, is that a "seizure" of the weapon?" Similarly, has the weapon "come into the possession" of the officer while he checks with NCIC?

It appears to me that these two questions beg for an answer from the DPS.

The DPS position on this may, however, be shown by the language "A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114."

Jim

DING DING DING.. we have a winner

I too read it as Article 18.19, CCP, and Chapter 46, PC. 05.10 Weapons Para 1.a. and 1.b do not come in to play unless the firearm is sized and held.

Para 1 the justification is much lower for the NCIC check action "When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report"

So while I still do not like it... I can in my IANAL capacity see the authority and for the officers actions. I believe many times there is no justification for the "safety disarming" But we are questioning or asking a legal position on an officers "feelings" at the side of the road...We will not in my opinion win that fight in policy or law.

To me looks like we need the law to exempt us from the provisions of Article 18.19, CCP, and Chapter 46, PC. 05.10 Weapons Para 1 unless we have been detained for or suspected of a serious crime (insert right verbiage that spells out definition of serious crime)

I DO NOT want to remove an officers legal ability to take a weapon from someone and run a NCIC check.

I do want to restrict his ability to do so, to only those suspected of having stolen property, or a serious crime...