Carry in vehicle?

[ole-cuss]

I was told by a local gunshop owner that someone with a chl could not carry like in a glove box. He said the chl means that it has to be conceled on the person. Sounds like crap to me.

[Charles L. Cotton]

Ole-cus, you're right, he's not.

Chas.

[KBCraig]

There are lots of "experts" out there, many of them hanging around gun shops and shows, whose base of knowledge is not just incomplete, it's downright dangerously incorrect!

Not only is it legal for a CHL to carry off-person and concealed, but starting 9/1/05, there will be a lot more room for non-CHLs to carry concealed within a car.

(Note: I did not say that starting 9/1, it would be legal for non-CHLs to carry in the car; it's not quite that clear-cut. It will be a legal presumption that they are legal to carry, but a prosecutor can argue otherwise at court.)

Kevin

[USMC-COL]

I think I have an understanding of HB 823 - car carry, effective 9/1. My question relates to my daughter who will be traveling between UNT at Denton and San Antonio frequently. I know that an 18-year old cannot purchase a handgun, but I believe they can own a handgun given to them. Will HB 823 cover an 18-year old who is traveling? I understand the laws related to firearms and school property so that is not my question. Thanks to one and all who may have some advice.

[KBCraig]

I know that an 18-year old cannot purchase a handgun, but I believe they can own a handgun given to them. Will HB 823 cover an 18-year old who is traveling?

There's no age restriction in the law. An 18 year old can own a pistol in Texas, and can even purchase one. Just not from a federally licensed dealer. The "21" age requirement is from federal law, not Texas.

Kevin

[Braden]

(Note: I did not say that starting 9/1, it would be legal for non-CHLs to carry in the car; it's not quite that clear-cut. It will be a legal presumption that they are legal to carry, but a prosecutor can argue otherwise at court.)

Kevin

Just out of curiosity, why do you think it won't be LEGAL for a non-CHL to carry in their car? HB823 seems pretty clear to me.

[stevie_d_64]

There are lots of "experts" out there, many of them hanging around gun shops and shows, whose base of knowledge is not just incomplete, it's downright dangerously incorrect!

Not only is it legal for a CHL to carry off-person and concealed, but starting 9/1/05, there will be a lot more room for non-CHLs to carry concealed within a car.

(Note: I did not say that starting 9/1, it would be legal for non-CHLs to carry in the car; it's not quite that clear-cut. It will be a legal presumption that they are legal to carry, but a prosecutor can argue otherwise at court.)

Kevin

Just makes you wonder why more people don't get their CHL's...

I can imagine that if your that passionate about carrying a firearm for protection while on the road...You'd go ahead and get the CHL...

I would go so far as to say that I believe we may see more incidences of road-rage and other high stress encounters on our highways because of this bill...

To me, the conflict resolution and instructing of the applicable laws regarding use of force and deadly force in the CHL class, helped me understand your responsibilities, that the other (non-CHL) person may not understand...

And the other negative side to this, may be that Law Enforcement could be even more aggressive in their "guilty before proven innocent/officer safety" type interaction with the public when "guns" are now more prevalent on the road...

Don't take that comment as a negative opinion on Law Enforcement...I just think that since (by law) CHL'ers are required to notify, the general public (non-CHL'ers) will not notify, thus taking us back to the days before the CHL law was enacted...

I not sure that this bill is doing anything but putting more pressure on Law Enforcement now...

Not everyone they pull over or interact with now on the highways will be a CHL...

But then again, not everyone will take advantage of this protection under this law...

Seems to be more of a crap shoot I guess, and will put Law Enforcement at a disadvantage again...

I may be wrong, but then again I am just shooting from the hip...

[dolanp]

Here's an interesting question. We've gone around about a CHL 'most likely' not excluding you from 46.02 (including 'illegal knives' and clubs) because the exception in the statute specifically mentions that you are carrying a gun of your category with valid CHL.

However, 'traveling' has always been a blanket exception to 46.02. Now that traveling is much more clearly defined this raises a new question: Does HB 823 allow you to carry 'illegal knives' and clubs in your car?

The text:

(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(3) not otherwise prohibited by law from possessing a
firearm;
(4) not a member of a criminal street gang, as defined
by Section 71.01; and
(5) not carrying a handgun in plain view.

Subsections (3) and (5) do mention firearms/handguns, but neither one specifically requires that a firearm/handgun has to be the item carried to make 46.02 nonapplicable.


Thoughts?

[txinvestigator]

Here's an interesting question. We've gone around about a CHL 'most likely' not excluding you from 46.02 (including 'illegal knives' and clubs) because the exception in the statute specifically mentions that you are carrying a gun of your category with valid CHL.

However, 'traveling' has always been a blanket exception to 46.02. Now that traveling is much more clearly defined this raises a new question: Does HB 823 allow you to carry 'illegal knives' and clubs in your car?

The text:

(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(3) not otherwise prohibited by law from possessing a
firearm;
(4) not a member of a criminal street gang, as defined
by Section 71.01; and
(5) not carrying a handgun in plain view.

Subsections (3) and (5) do mention firearms/handguns, but neither one specifically requires that a firearm/handgun has to be the item carried to make 46.02 nonapplicable.


Thoughts?

I am a firm believer that the CHL exception to 46.02 ONLY applies to handguns; however, I believe that the traveling exception makes ALL of 46.02 non-applicable.

Interesting.......

[KBCraig]

(Note: I did not say that starting 9/1, it would be legal for non-CHLs to carry in the car; it's not quite that clear-cut. It will be a legal presumption that they are legal to carry, but a prosecutor can argue otherwise at court.)

Kevin

Just out of curiosity, why do you think it won't be LEGAL for a non-CHL to carry in their car? HB823 seems pretty clear to me.

HB823 doesn't make anything clear. Well, it does, but not in the way most people think.

It doesn't give a blanket exemption to unlicensed carry in a car. What it does, is create a presumption that a person is travelling if they are in a car. A presumption is rebuttable at trial. You may have noticed the part in 823 about jury instructions; if HB823 makes car carry legal, why would there be a jury, or a trial?

The answer is this: If an unlicensed person is arrested for UCW while in a private motor vehicle, they are presumed to be travelling, and UCW wouldn't apply. But, if the prosecutor can convince a jury that the person was not actually travelling, then they can be found guilty of UCW.

Easy examples:
- On a regular commute to work
- Perishable groceries in the car, and on the way home from the grocery store
- No luggage, map, travel plan, or particular destination

A lot of people are running around saying that HB823 makes unlicensed carry in a car legal as of 9/1/05. Please do your best to disabuse them of that notion, and explain that they can still be arrested, tried, and convicted if they are not actually travelling.

Kevin

[Charles L. Cotton]

A lot of people are running around saying that HB823 makes unlicensed carry in a car legal as of 9/1/05. Please do your best to disabuse them of that notion, and explain that they can still be arrested, tried, and convicted if they are not actually travelling.

Presumptions can be rebutted, unless the statute expressly states the presumption is unrebuttable. However, with HB823, the only way to disprove the presumption is to disprove the facts underlying the presumption. All you have to do is establish the elements of the presumption. When dealing with HB823, this means that 1) you're in a private motor vehicle; 2) not committing a crime (other than Class C traffic violations); 3) not prohibited from possessing a firearm; 4) not a member of a street gang; or 5) not carrying a handgun in plain view.

The presumption goes to the jury, if there are facts establishing elements 1) through 5). In order to rebut the presumption, the state must prove that one of the listed elements (the facts establishing the presumption) do not exist, and this must be proven "beyond a reasonable doubt." Only by disproving one of the 5 elements will defeat the presumption. It matters not if you have fresh groceries in the car, are on your regular route to and/or from work, or don't have any luggage. It wouldn't matter if you told the officer you were just driving three blocks from your house to a neighbor's home. Can you be arrested? Sure, but most LEO's are not going to waste their time and no responsible ADA is going to accept the charges, unless there is evidence you don't meet one or more of elements 2) through 5).

Note the statute's instructions on what is required to rebut the presumption:

(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:
(A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist;
(B) if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;

Also, the Legislative history of this bill makes it abundantly clear that the intent was to allow people to carry guns in their cars without a CHL.

There is a ton if misinformation in the newsgroups on this issue, most of which is based upon erroneous attempts to apply pre-HB823 case law.

Was there a cleaner way to achieve this goal? You bet! However, I suspect the author of the bill felt it be less controversial to focus on "traveling" currently in the Penal Code, rather than make a more overt change that would draw more attention to the bill.

Regards,
Chas.

[txinvestigator]

CHas,

Talk to me about this; If the police can arrest a person who is traveling after Sept. 1, even though 46.02 does not apply to a person who is traveling, then can't they also arrest a CHL holder who is carrying, a person firing a handgun at a range, a commissioned security officer, etc? Just let the courts decide?

I realize it is goofy to even be concerned about a person getting arrested under those conditions, but why are we all so worried about the traveling non-applicability?

I would think that the mandate is clear: if the person meets the criteria, leave them alone.

My only reason to be concerned is the cop who does not even know the law. I have already expereinced this, and was threatened with arrest by a Dallas cop for not displaying my CHL. (nevermind he never asked for ID, or that I can't find where he can arrest me for a 1st violation of that anyway).

It seems that there is a deficiency in the training/updating of our LEO's. We really need to push the DPS and TSRA to notify PD's of the changes and finer points, and request that these agencies conduct briefing training, etc.

Your thoughts?

[stevie_d_64]

CHas,

Talk to me about this; If the police can arrest a person who is traveling after Sept. 1, even though 46.02 does not apply to a person who is traveling, then can't they also arrest a CHL holder who is carrying, a person firing a handgun at a range, a commissioned security officer, etc? Just let the courts decide?

I realize it is goofy to even be concerned about a person getting arrested under those conditions, but why are we all so worried about the traveling non-applicability?

I would think that the mandate is clear: if the person meets the criteria, leave them alone.

My only reason to be concerned is the cop who does not even know the law. I have already expereinced this, and was threatened with arrest by a Dallas cop for not displaying my CHL. (nevermind he never asked for ID, or that I can't find where he can arrest me for a 1st violation of that anyway).

It seems that there is a deficiency in the training/updating of our LEO's. We really need to push the DPS and TSRA to notify PD's of the changes and finer points, and request that these agencies conduct briefing training, etc.

Your thoughts?

I cannot agree with you more on this one muh man...

You and I both know Texas is not as bad as some other States...Education is the key, and its everyone's responsibility to be as well informed as you can be on the law...And when and if you may be wrong, or a bit out of touch with a current provision be ready and grateful that you have places to go and discuss and get back on track, regardless of your station in life...

[Charles L. Cotton]

. . . If the police can arrest a person who is traveling after Sept. 1, even though 46.02 does not apply to a person who is traveling, then can't they also arrest a CHL holder who is carrying, a person firing a handgun at a range, a commissioned security officer, etc? Just let the courts decide?

The short answer is yes, the arrest can be made. This would be the case even if the "Not Applicable" language in 46.15 is changed to a proper "Exception." (However, see below.)

I realize it is goofy to even be concerned about a person getting arrested under those conditions, but why are we all so worried about the traveling non-applicability?

That's exactly my position on these types of issues. Can the arrest be made? Yes. Is it at all likely? Not in my opinion. LEO's don't want to waste their time making arrests when the ADA isn't going to accept the charges.

Sure, there can be a rogue COP that will do it simply to harass someone who they fell deserves it, but thankfully those folks are relatively few in number. Plus, knowingly making such an arrest without any probable cause could well be either an ultra vires act (an act outside the scope of their duty/employment) making them personally liable in a civil action, or a violation of the person's civil rights (Section 1983 action) making the officer and his/her department potentially liable in a civil action.

I would think that the mandate is clear: if the person meets the criteria, leave them alone.

I agree and I believe this is exactly how the vast majority of LEO's will handle this issue. LEO's are in the same boat as attorneys when it comes to the "one bad apple" effect. Most people don't have to deal with LEO's or attorneys very often, if at all. When they do, it's not because they decided to drop by and say hello to us; something has gone wrong, perhaps terribly wrong. So, the stress level is typically high and emotions are frayed. Let one of my colleagues or a LEO handle the matter in an inappropriate manner, real or perceived, and that perception may well be the one that person carries with them for a long, long time. But as you state, I think vast majority of LEO's will recognize the Legislature's mandate and will act accordingly.

My only reason to be concerned is the cop who does not even know the law. I have already experienced this, and was threatened with arrest by a Dallas cop for not displaying my CHL. (never mind he never asked for ID, or that I can't find where he can arrest me for a 1st violation of that anyway).

It seems that there is a deficiency in the training/updating of our LEO's. We really need to push the DPS and TSRA to notify PD's of the changes and finer points, and request that these agencies conduct briefing training, etc.

I believe you have correctly identified the problem. I am convinced that those of us who are interested enough in this issue to follow boards such as TexasCHLforum and others are far better versed on gun laws in general and CHL in particular, than are most LEO's. It makes sense that this would be true. LEO's have to deal with every aspect of the Penal Code and to some degree, the Code of Criminal Procedure. They are not attorneys, but folks expect them to be. Combine their broad responsibility with the fact that they have no idea what part of the PC they will be dealing with when the next call drops, and it's easy to understand the difficulty officers face. If someone comes to me with a problem outside of my area of practice, I can simply refer them to someone who knows that area of the law. An officer doesn't have the option to pass on a call because "domestic violence calls are outside of my area of expertise."

On the flip side of the coin, an officer's ignorance of the law is no more an excuse than it is for a citizen. People who are not violating the law should not be arrested and have to incur the related expense, embarrassment and inconvenience. The one weak area I've seen is the unwillingness of many LEO's to admit they may be in error on a particular area of the law and seek additional information from other officers or superiors, before making an arrest or writing a citation.

I fully agree that education on changes in the law is critical to foster good relationships between citizens and LEO's. The change from a Class B misdemeanor to a (non-arrest) potential CHL suspension, on the first offense for failing to show a CHL, is a relatively minor change that was probably missed by many LEO's and the folks who keep them apprized of changes in the law. However, the "handgun in the car without a CHL" is a huge change in the law and I expect all LEO's will be made aware of the new law.

txinvestigator, thanks for the thought-provoking post.

Regards,
Chas.

[Chris]

It seems that there is a deficiency in the training/updating of our LEO's. We really need to push the DPS and TSRA to notify PD's of the changes and finer points, and request that these agencies conduct briefing training, etc.

do you know how many people have been arrested on a class B misdemeanor for "exhibition of acceleration?" when that law was changed, they added an element in order to prove exhibition of acceleration. it has to be "in connection with a drag race." a drag race is defined as "two or more vehicles." i know first hand that there have been quite a few people arrested for that when all the elements were not there. it was solely based on the lack of information by the arresting officer. doctors aren't required to study the latest medical procedures, but it behooves them to do so. cops should stay abreast on legislative changes just the same.

unfortunately, there are a bunch who don't. i see our guys screwing that up all the time. you can almost be assured that the media won't give a lot of publicity to the traveling exception. we saw that when they went crazy over the license plate frame law, but failed to ever mention the move over act, a far more important piece of legislation, in my opinion.

the lack of publicity and the failure of agencies to actually recognize the change will result in a lot of people being arrested. most law book updates only come out once a year or so. when i mentioned the passage of HR218 in briefing one day, everyone looked at me funny. that was a 10 year old bill for crying out loud!