Had to go to the courthouse to fight a bogus ticket for my wife today. While I was there I struck a conversation with a LEO. He was extremely polite and professional but he gave some information that bothered me.
We talked about gun laws in general and worked our way to carrying on your property. It was stated that one can OC on their own property.
I asked him about OCing in your front yard and he told me that even though you are on your property you are in a public place because you are in public view. He backed this up by stating he can arrest someone for public intoxication on their front yard.
He then stated that one can get arrested for OCing in their front yard for inciting a panic even if the weapon is holstered. He followed this up with a scenario of OC being legal in TX and one walks into a mall and someone sees the gun and gets scared then they are in violation of inciting a panic.
So what I got from him was that my premises or premises under my control is still public if the public can see it and that if somebody is afraid of guns and freaks out even though the gun is holstered and legally carried its against the law.
I think that this is all bologna but IANAL. Can some of you legal experts shed some light on this and and cite the statutes? Thanks!
Louisiana has solved this problem with a court ruling to the effect that the sighting of a weapon being carried in a legal non-threatening manner does not constitute a chargeable offense. Seems like any court faced with the same question would reach a similar conclusion.
A Legal Reference:
As for grounds for arrest: “The carrying of arms in a quiet, peaceable,
and orderly manner, concealed on or about the person, is not a breach of
the peace. Nor does such an act of itself, lead to a breach of the
peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy
v. Lashley, 5 W. Va. 628, 41 S.E. 197)
The officer was stating the truth, though paraphrasing the law a little bit. In doing so, he combined several different theories that appear to confuse you, but he is essentially correct. That problem is that we tend to look at situations in view of one law and there may be several that apply. What can be legal under one law may be illegal under another.
PC 46.15 makes it legal for you to carry, either openly or concealed, on property you own or control. It does not specify whether this is public or private property or a public or private place. Your front yard is your property, so unlawfully carrying does not apply there. The under your control part is important because it lets you carry at your business if you lease the property or at work if you are the manager (applying law here and not emplyment consequences which are solely up to your boss).
There is a legal difference between property and place that many people do not understand. Private or public property refers solely to the ownership of the property. Private or public place refers to who has access to the property. The public place concept is somewhat confusing to many, but we all understand the difference when we look at the larger distance concepts. We know a business open to the public is different from our homes even though both are still private property. But the concept applies in a finer detail still to places like our front yards (or back yards if no fence).
Thus, if you have a front yard with no privacy fence, it is open to the view (which is a type of access) of the public and is a public place. But since it is still property you own or under your control, you may still carry a handgun there openly without worrying about unlawfully carrying.
But there are always other laws to worry about. Without regard to ownership of the property, it is illegal to display a weapon in a public place in a manner calculated to alarm. This is in the Disorderly Conduct statutes (PC 42.01). The first important part to note here is the public place. As I showed above, your front yard is very probably legally a public place. This is what the officer you spoke with was referring to. The other half of this is "in a manner calculated to alarm". There is a lot of debate on what that phrase means. I take the position that calculated means that I planned it. Others take the meaning that it is solely dependent on the victim's mental response. Apparently the officer you spoke with is in the second group. If this is the correct interpretation, then if anyone saw your weapon, whether concealed or open, and was frightened by it, you could be charged with disorderly conduct.
Thus, you can be charged with violating a law for carrying your gun in your own front yard. This is a class B misdemeanor, btw. Thus it is a little less than unlawfully carrying and why the difference in law exists.
I hope this helps clear it up for you. I am not a lawyer, but this is the way I was trained as a police officer and the way I have trained others since. I would like to see all of the firearms sections taken out of disorderly conduct and put in the weapons chapter so we keep everything together but I have no say in the matter. If I have any of this wrong, I am sure Charles or one of the other lawyers can correct it quickly.
XtremeDuty.45 wrote:I asked him about OCing in your front yard and he told me that even though you are on your property you are in a public place because you are in public view. He backed this up by stating he can arrest someone for public intoxication on their front yard.
What does one have to do with another. If a cop can be arrested for public intoxication does that mean he can't legally carry openly?
Premises is the property category and doesn't really affect the idea of the disorderly conduct charge.
And your interpretation about calculated to alarm is almost exactly how I feel. If I am aiming it at someone, or waving it around, then I am trying to scare people ro doing something that will most likely scare people. Simply carrying a gun is not supposed to scare people. But, if you remember the incident in Round Rock a few months back (off duty officers took pictures of a waitress holding one of their SWAT rifles), the person who first called it in used the idea that others might be scared by this, even though no one in the area appeared to be alarmed. They filed charges against the officers but the DA declined to prosecute for this reason (the officers were still disciplined by their department, but that was justifiable for violating the department rules). If I recall correctly, one of the TSRA officers was stopped and hassled using the same argument a couple years back, because he simply had a black powder rifle visible in his car.
It is an area of the law we need to change and clarify. The law needs to require intent to alarm or something similar if we are still going to have this section.
As the resident law student I guess I'll give it a shot.
Penal code provision:
§ 46.02. Unlawful Carrying Weapons
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
From that reading it seems that you are ok to open carry a weapon on your front lawn. However, Rothstein hits the nail on the head. His public v. private argument is shrouded in 14th amendment search and seizure. If you carry the weapon in a "public" place, then you "knowingly expose" and LOSE your right to privacy thus lose your right to claim an unreasonable seizure whether of property or person. If the LEO sees you carrying a weapon, even on your front lawn and you've made no attempt to hide or "exhibited a subjective expectation of privacy", you aren't being "searched" and will be "seized." The analysis obviously goes a lot deeper than this but generally how it goes.
I can go into a lot more detail but I'm not getting paid
disclaimer: This is NOT legal advice and only one students interpretation of the code as if it were a law school exam.
All that is necessary for the triumph of evil is for good men to do nothing. - Edmund Burke
You can be arrested and charged for MANY, MANY, MANY, MANY (did I include enough MANY's?) - the DA will press charges on what that think they can win in court. If they don't think all the facts are in line, then they don't charge. Reminds me of something very, very important!
I looked and can't find the video about not talking to the police.... Buellur? Had the Police Detective as the opposite in a debate....Buellur?
Doug
LaserTex
Air Force Retired ** Life Member VFW ** NRA Member **
** Life Member AmVets ** Patriot Guard Rider **
LaserTex wrote:I looked and can't find the video about not talking to the police.... Buellur? Had the Police Detective as the opposite in a debate....Buellur?
XtremeDuty.45 wrote:To me calculated to alarm would be pointing it at someone...NOT holstered.
That's PC 22.05 Deadly Conduct.
To me calculated to alarm would be what that guy did chasing down those kids with an AR-15 who rang his door bell and then ran. It was a thread recently posted here. Even though he was carrying a long gun, and therefore would normally be legal, it would appear he did so with the intention of scaring someone. Either to not do what they did again or to stop their leaving. At least if I was the DA that's what I would try to prove up.
Now a weapon openly carried in a holster on your front lawn can be shown to be calculated to cause alarm depending on how you word things to a responding officer. For instance if you do so because there are some hoodlums on your street and you want them to see you have a firearm and to not mess with you could be constructed to mean you were trying to cause alarm. However if you told the officer that you carry like that in your house for comfort and you stepped out on your lawn to see what was going on, to get the paper, check the mail, etc then that is not calculated to cause alarm. So like many things it's how you respond or say it.
Now if you run out with a pistol in your hand and yell at some kids to get off your lawn there is no talking your way out of that one. It's pretty cut and dry. Having said all that though I won't open carry in my front lawn unless they completely changed the law to just make open carry legal. I don't want my neighbors thinking I'm some kind of gun nut (I am) and I don't want thugs to know I have firearms in the house. Plus it can draw the attention of LEOs and I generally try not to do that. You might get the new one fresh out of the academy with the big head and the "I want to arrest anybody for anything" mentality.
My posts on this website are worth every cent you paid me for them.
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.
Beiruty,
United we stand, dispersed we falter
2014: NRA Endowment lifetime member
In my non-legal opinion, I agree with Mr. Rothstein.
