Need a little clarification on new law

[Ruark]

Previously, there were two requirments in the CC-related Texas law:

1. If you were stopped by an LEO for a traffic infraction and asked for your ID, you were required to also provide him with your LTC if you were carrying concealed at that moment.

2. If you were carrying openly, an LEO could approach you and ask to see your LTC.

How were these two affected by the new constitutional carry laws? If you're stopped, are you required to inform the officer that you're carrying?

If you're carrying openly, can an officer still ask to see your LTC, or ask if you have one, or anything else?

[Mike S]

There's no change to #1. If you have an LTC AND you have a handgun on or about you, AND you are asked for ID by a LEO, then you are required to produce your ID & your LTC. However, there's no legal penalty for failure to do so (that was dropped from the statute several years ago, well before constitutional carry).

Reference: Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display:

(1) both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license; and

(2) if the license holder's handgun license bears a protective order designation, a copy of the applicable court order under which the license holder is protected

.

Regarding #2, I'm not aware of anything in the statue that specifically allowed, nor prohibited, LEOs from asking if you have an LTC when you are open carrying. If I recall correctly, there were some departments that had policies of not asking merely due to the presence of an openly carried handgun, absent some other factor to indicate threatening or unlawful conduct.

[oohrah]

Re: #1. When I showed my DL to a LEO during an accident investigation, I also showed him my LTC. He said it was no longer necessary to do that. Obviously, there will some confusion among LEOs about what the law actually requires. I always show my LTC regardless so there are no surprises.

[Soccerdad1995]

Regarding #2, I always thought that a LEO needed probable cause that a crime was being committed in order to stop anyone (general statement not limited to just carrying a gun). And I further thought that just having a handgun was not probable cause (by itself), any more than seeing someone driving a car would be probable cause that they are an unlicensed driver.

Of course now, seeing someone with a gun would be even less probable cause of a crime since people can legally carry without a license.

[ScottDLS]

Previously, there were two requirments in the CC-related Texas law:

1. If you were stopped by an LEO for a traffic infraction and asked for your ID, you were required to also provide him with your LTC if you were carrying concealed at that moment.

2. If you were carrying openly, an LEO could approach you and ask to see your LTC.

How were these two affected by the new constitutional carry laws? If you're stopped, are you required to inform the officer that you're carrying?

If you're carrying openly, can an officer still ask to see your LTC, or ask if you have one, or anything else?

As far as I can tell, no changes were made in the new law to change the requirements in GC 411.205:

Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE.
If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

Now the key point is that there is no penalty for failing to do so.

Also, understand that there are only certain circumstances when a magistrate or a peace officer can "demand" identification, and in only a very few of them is there a penalty for refusing to provide it. Namely when you are under arrest.

Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

My point here is that if you are "walking down the street" minding your own business, a peace officer technically has no authority to "stop" you. They can engage you in voluntary conversation, meaning you can walk away. If they have a specific, reasonable, articulable, suspicion that you are committing a crime or are about to commit a crime then they can temporarily detain you for an investigative stop (Terry stop). Now that open carry is legal without a permit, it is unlikely that the mere fact of you carrying is reasonable suspicion for a stop. Further, if the peace officer has probable cause to believe you committed or are committing a crime, he may arrest you. This is the only time where you must identify yourself, and since if you are arrested and the officer searches you, they will probably find your LTC.

[jmorris]

Regarding #2, I always thought that a LEO needed probable cause that a crime was being committed in order to stop anyone (general statement not limited to just carrying a gun). And I further thought that just having a handgun was not probable cause (by itself), any more than seeing someone driving a car would be probable cause that they are an unlicensed driver.

Of course now, seeing someone with a gun would be even less probable cause of a crime since people can legally carry without a license.

If I remember correctly when the open carry bill was introduced there was another bill introduced that made it explicit that an LEO could NOT stop and ask for LTC just because you were open carrying. That bill was withdrawn because of existing 4th amendment protection.

The new law contained a similar provision but was stripped out before passage. The only thing that remains is "acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is necessary for the protection of the person, officer or another individual." So, can an officer, for the protection of the person, officer or another individual, stop you for an ID check? Wait for the court case.

[ScottDLS]

Regarding #2, I always thought that a LEO needed probable cause that a crime was being committed in order to stop anyone (general statement not limited to just carrying a gun). And I further thought that just having a handgun was not probable cause (by itself), any more than seeing someone driving a car would be probable cause that they are an unlicensed driver.

Of course now, seeing someone with a gun would be even less probable cause of a crime since people can legally carry without a license.

If I remember correctly when the open carry bill was introduced there was another bill introduced that made it explicit that an LEO could NOT stop and ask for LTC just because you were open carrying. That bill was withdrawn because of existing 4th amendment protection.

The new law contained a similar provision but was stripped out before passage. The only thing that remains is "acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is necessary for the protection of the person, officer or another individual." So, can an officer, for the protection of the person, officer or another individual, stop you for an ID check? Wait for the court case.

In my opinion NO, because per SCOTUS precedent and the 4th amendment, stopping and disarming you for no specific reason is unlawful...therefore not in the LAWFUL discharge of the officers duty.

[Tex1961]

Regarding #2, I always thought that a LEO needed probable cause that a crime was being committed in order to stop anyone (general statement not limited to just carrying a gun). And I further thought that just having a handgun was not probable cause (by itself), any more than seeing someone driving a car would be probable cause that they are an unlicensed driver.

Of course now, seeing someone with a gun would be even less probable cause of a crime since people can legally carry without a license.

If I remember correctly when the open carry bill was introduced there was another bill introduced that made it explicit that an LEO could NOT stop and ask for LTC just because you were open carrying. That bill was withdrawn because of existing 4th amendment protection.

The new law contained a similar provision but was stripped out before passage. The only thing that remains is "acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is necessary for the protection of the person, officer or another individual." So, can an officer, for the protection of the person, officer or another individual, stop you for an ID check? Wait for the court case.

In my opinion NO, because per SCOTUS precedent and the 4th amendment, stopping and disarming you for no specific reason is unlawful...therefore not in the LAWFUL discharge of the officers duty.

[Papa_Tiger]

Regarding #2, I always thought that a LEO needed probable cause that a crime was being committed in order to stop anyone (general statement not limited to just carrying a gun). And I further thought that just having a handgun was not probable cause (by itself), any more than seeing someone driving a car would be probable cause that they are an unlicensed driver.

Of course now, seeing someone with a gun would be even less probable cause of a crime since people can legally carry without a license.

If I remember correctly when the open carry bill was introduced there was another bill introduced that made it explicit that an LEO could NOT stop and ask for LTC just because you were open carrying. That bill was withdrawn because of existing 4th amendment protection.

The new law contained a similar provision but was stripped out before passage. The only thing that remains is "acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is necessary for the protection of the person, officer or another individual." So, can an officer, for the protection of the person, officer or another individual, stop you for an ID check? Wait for the court case.

In my opinion NO, because per SCOTUS precedent and the 4th amendment, stopping and disarming you for no specific reason is unlawful...therefore not in the LAWFUL discharge of the officers duty.

That is how it should be. If you want to see how it plays out in reality, take a look at any of the many YouTube channels out there where officers are ignorant of the law including the Fourth Amendment, trample civil rights, and are not held responsible due to qualified immunity. The typical response from the police departments when a complaint is filed is, "We investigated ourselves and found we did nothing wrong". Only after a lengthy (and expensive) civil rights lawsuit is brought (and concluded/settled in the plaintiff's favor) are there any changes in the training of the law enforcement departments involved.

I do not agree with all of the conclusions that these YouTubers come to, but some good ones to look at include:
Audit the Audit
LackLuster
The Battousai
The Armed Fisherman (Florida based, but a peek of what you may experience when officers are ignorant of the law and have a personal agenda)

I am not a lawyer, this is not legal advice. I am not bashing police officers in general, just pointing out that there are MANY recorded instances where officers are ignorant of the law and the outcome is not good for the person they are investigating. YMMV.

[oohrah]

Regarding #2, I always thought that a LEO needed probable cause that a crime was being committed in order to stop anyone (general statement not limited to just carrying a gun). And I further thought that just having a handgun was not probable cause (by itself), any more than seeing someone driving a car would be probable cause that they are an unlicensed driver.

Of course now, seeing someone with a gun would be even less probable cause of a crime since people can legally carry without a license.

If I remember correctly when the open carry bill was introduced there was another bill introduced that made it explicit that an LEO could NOT stop and ask for LTC just because you were open carrying. That bill was withdrawn because of existing 4th amendment protection.

The new law contained a similar provision but was stripped out before passage. The only thing that remains is "acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is necessary for the protection of the person, officer or another individual." So, can an officer, for the protection of the person, officer or another individual, stop you for an ID check? Wait for the court case.

Look up "Terry Stop". Only reasonable suspicion is needed. Supreme Court has ruled that.

[philip964]

I have Citizen app on my phone. It alerts me to any crime near me. Also shows me where the other phones are.

Quite often there will be this alert. “Man with gun reported” and show me the location.

No crime, just man with gun.

To me it’s odd.

[ScottDLS]

Regarding #2, I always thought that a LEO needed probable cause that a crime was being committed in order to stop anyone (general statement not limited to just carrying a gun). And I further thought that just having a handgun was not probable cause (by itself), any more than seeing someone driving a car would be probable cause that they are an unlicensed driver.

Of course now, seeing someone with a gun would be even less probable cause of a crime since people can legally carry without a license.

If I remember correctly when the open carry bill was introduced there was another bill introduced that made it explicit that an LEO could NOT stop and ask for LTC just because you were open carrying. That bill was withdrawn because of existing 4th amendment protection.

The new law contained a similar provision but was stripped out before passage. The only thing that remains is "acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is necessary for the protection of the person, officer or another individual." So, can an officer, for the protection of the person, officer or another individual, stop you for an ID check? Wait for the court case.

Look up "Terry Stop". Only reasonable suspicion is needed. Supreme Court has ruled that.

A "Terry Stop" requires a (specific) reasonable, articulable, suspicion that a crime (penal code violation in TX) is being committed or is about to be committed, OR it is not lawful. "The guy looked like a mook" doesn't cut it. And now with unlicensed open carry being legal, neither is openly carrying a handgun, though I would argue even before unlicensed carry it still wasn't "reasonable suspicion".

[srothstein]

A "Terry Stop" requires a (specific) reasonable, articulable, suspicion that a crime (penal code violation in TX) is being committed or is about to be committed, OR it is not lawful. "The guy looked like a mook" doesn't cut it. And now with unlicensed open carry being legal, neither is openly carrying a handgun, though I would argue even before unlicensed carry it still wasn't "reasonable suspicion".

One minor technical correction first. Not all crimes are in the Penal Code. There are many codes which have crimes, such as the Transportation Code (all of those traffic tickets are actually crimes), the Education Code (some interesting ones about failure to ID on a college campus and for displaying a firearm on any campus), the Health and Safety Code (where most drug laws and illegal cigarette smoking laws are), and the Alcoholic Beverage Code (underage drinking, etc.). I agree with the rest of your statement about needing reasonable, ARTICULABLE, suspicion of a crime and just looking like a mook won't cut it.

My other point, which may be more important for an academic discussion or training police, is on just what constitutes reasonable suspicion. Unfortunately, the term is not very well defined and courts have generally taken the same attitude as they have with pornography - "I know it when I see it". I was taught that it is when the officer comes into possession of such facts that would lead an average person to believe that a crime is or may be committed. The behavior might be legal, but it must be more likely to be illegal than legal. This lifts the standard way over mere suspicion but not quite as high as probable cause. I point this out because I do not agree with you that when licenses were required that seeing a person with a firearm would not have made the cut as reasonable suspicion. When licenses were required, I think more people were still carrying illegally (other than the unlawfully carrying they were not all criminals, some just did not believe a license was required) than were licensees, so it may not have made the cut on "more likely to be illegal".

Obviously, this is moot now for the scenario of just seeing a gun. There is no way any officer could justify this as meeting the requirements of reasonable suspicion since it is plain legal in at least 95% of the cases.

And while we are on the subject of what Terry authorized, the frisk portion of that decision is one of the most abused searches I have seen. It was a good decision for the specific case facts, but a very bad decision overall. I keep hoping it will be overturned. But I will not hold my breath waiting for that.

[ScottDLS]

A "Terry Stop" requires a (specific) reasonable, articulable, suspicion that a crime (penal code violation in TX) is being committed or is about to be committed, OR it is not lawful. "The guy looked like a mook" doesn't cut it. And now with unlicensed open carry being legal, neither is openly carrying a handgun, though I would argue even before unlicensed carry it still wasn't "reasonable suspicion".

One minor technical correction first. Not all crimes are in the Penal Code. There are many codes which have crimes, such as the Transportation Code (all of those traffic tickets are actually crimes), the Education Code (some interesting ones about failure to ID on a college campus and for displaying a firearm on any campus), the Health and Safety Code (where most drug laws and illegal cigarette smoking laws are), and the Alcoholic Beverage Code (underage drinking, etc.). I agree with the rest of your statement about needing reasonable, ARTICULABLE, suspicion of a crime and just looking like a mook won't cut it.

My other point, which may be more important for an academic discussion or training police, is on just what constitutes reasonable suspicion. Unfortunately, the term is not very well defined and courts have generally taken the same attitude as they have with pornography - "I know it when I see it". I was taught that it is when the officer comes into possession of such facts that would lead an average person to believe that a crime is or may be committed. The behavior might be legal, but it must be more likely to be illegal than legal. This lifts the standard way over mere suspicion but not quite as high as probable cause. I point this out because I do not agree with you that when licenses were required that seeing a person with a firearm would not have made the cut as reasonable suspicion. When licenses were required, I think more people were still carrying illegally (other than the unlawfully carrying they were not all criminals, some just did not believe a license was required) than were licensees, so it may not have made the cut on "more likely to be illegal".

Obviously, this is moot now for the scenario of just seeing a gun. There is no way any officer could justify this as meeting the requirements of reasonable suspicion since it is plain legal in at least 95% of the cases.

And while we are on the subject of what Terry authorized, the frisk portion of that decision is one of the most abused searches I have seen. It was a good decision for the specific case facts, but a very bad decision overall. I keep hoping it will be overturned. But I will not hold my breath waiting for that.

Very good point on the Penal Code. I really should have said violating a criminal statute regardless of where it resides in the code. On the issue of whether "more likely to be illegal than legal" as believed by the average person...I'd just say arguable.

I'm not wholly convinced that the suspicion is reasonable if the conduct can often, even if not the majority of the time be legal. A significant minority of the adult population of Texas has LTC (high single digits?). Federal appellate courts have split on comparable circumstances in other states. One of the other nuances, I think you may have pointed out in the past, is that Texas law specifically allows LEO to stop individuals driving to see if they are licensed. However, in the absence of some other RAS or perhaps even probable cause, I think this pretty clearly violates Terry and other Federal constitutional precedent. As far as I know Texas LEO don't make random car stops with out some RAS "pretext", which is of course easy to come up with. Witness, Live PD... "He's got a dim license plate bulb, pull him over and call for Lor the drug dog!" Though I have to admit, doesn't the guy with the dim license plate light ALWAYS have a bag of meth in the console and a needle on the floorboards?

I'm with you on your view of Terry also... A light pat down of the exterior clothing for weapons and brief investigatory detention, turns into three hours in the back of the car and your camera and mobile devices being mysteriously destroyed.