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So can you be told to leave government property "just because"?

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  • jordanmills

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    Refresher: TPC 30.05 lists a defense to prosecution when a condition of entry is that entry with a handgun is prohibited and the actor has a CHL. TPC 30.06 doesn't apply when the property is owned or leased by a governmental entity.

    The situation I'm thinking of is that you're carrying a concealed handgun into a government building (one that isn't a legislated no carry zone like a courthouse) and it is discovered that you have a concealed handgun (metal detector, virtual strip search, patdown/frisk, printing, etc), such as at Galveston mardi gras event on the strand.

    Say you get a boneheaded cop that doesn't get that says he won't let you come in or stay with a gun no matter what. Is there any law that can be cited to justify his denial of your entry? Can a cop (lawfully) just keep you off a street or out of a tax office because he doesn't want you there? Do you have any recourse on the spot, or are you stuck with trying to get a DA to file on him for official oppression? I'm pretty sure there's no civil right action for violations of the penal code.
    DK Firearms
     

    txinvestigator

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    He is not violating the penal code. The penal code does not make it an offense for him to deny you entry.

    Also remember how a defense to prosecution works; the defense does not mean you cannot lawfully be arrested. It means that if arrested, you have a defense you can offer in court as to why you should not be guilty.

    With a defense, there is still PC for an arrest.
     

    jordanmills

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    He is not violating the penal code. The penal code does not make it an offense for him to deny you entry.

    Also remember how a defense to prosecution works; the defense does not mean you cannot lawfully be arrested. It means that if arrested, you have a defense you can offer in court as to why you should not be guilty.

    With a defense, there is still PC for an arrest.
    You sure about the first? The penal code refers to denying "exercise or enjoyment of any right, privilege[...]". Entry to a public sidewalk would seem to be somewhere from a right to a privilege. Without some authority to restrict an individual's apparent right to use of a road or sidewalk, I don't see how it could lawfully be done.
    Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:
    [...]
    (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
    From what I can find, even home rule municipalities have no authority to regulate entry or use of sidewalks per se. Their authority is limited to construction, improvement, and declaring defect in Transportation code Sec Sec. 311.004. Additionally, the right to general use of sidewalks by the public is supported by texas transportation code section 316.021, which does not allow municipalities permit use of a public sidewalk for private use if that use interfere with public use of the sidewalk or street.

    You're of course right about the defense. But a legislated defense to prosecution usually results in a DA telling the LEOs to not make arrests because they won't prosecute. I don't know the details of how it goes with LEOs arresting people when they know charges won't be accepted.
     

    txinvestigator

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    As I wrote, a LEO can lawfully arrest a person for violation of 30.05 if a person fails to leave even if it is for carrying a handgun. Since it is a lawful arrest official oppression does not apply.

    I have no idea of the status of the strand.
     

    jordanmills

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    As I wrote, a LEO can lawfully arrest a person for violation of 30.05 if a person fails to leave even if it is for carrying a handgun. Since it is a lawful arrest official oppression does not apply.

    I have no idea of the status of the strand.

    Yes, I'm not arguing the instance of that. The question is if the LEO can tell someone to leave a public place when they're not breaking any laws.
     

    txinvestigator

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    Yes, I'm not arguing the instance of that. The question is if the LEO can tell someone to leave a public place when they're not breaking any laws.

    Define what you mean by public property. Do you mean areas like city, county or state owned property? Like perhaps a city park, city hall, etc? The state capital?
     

    Texan2

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    The leo gets to decide if he believes PC exists to make an arrest, not the arrestee. A magistrate then reviews and determines the validity of that PC. You have no immediate recourse right there on the side of the road...or wherever you may be.
     

    Younggun

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    If you get arrested it will be for arguing with the cop and telling him how "you know your rights".

    If asked to leave it would be wise to do so, at the very most give a respectful plea as to why you think you should not have to leave. If they disagree and say you must go then LEAVE and after you exit the building/premises contact the officers superiors and explain the situation that you have just encountered.
     

    Texan2

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    Younggun, while not reffering to anyone in this thread, we have some anti authoritarians in our movement that go looking for a fight and often push until they get one. Kudos, your solution is very reasonable and uses common sense.
     

    DougD

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    jordanmills,

    Hypotheticals are difficult if not impossible to fully flesh out because most of the time, each particpant has a slightly different idea, personal definition, or understanding of the situation. There's been plenty of internet gun forum discussions dealing with purely hypothetical scenarios eventually erupt into frothing-at-the mouth hate fests; complete with veiled threats to start shooting people should the hypothetical scenario ever become reality (not that they really mean it). On a side note, it's nice to see that Texas Gun Talk is relatively free of such sentiments.

    FWIW, Younggun has offered an excellent response to the hypothetical you've posed.

    May I respectfully ask if the scenario you introduced actually occurred anywhere in Texas? If so, where did it happen and where can we read more about it? Thanks for any info.
     

    jordanmills

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    Define what you mean by public property. Do you mean areas like city, county or state owned property? Like perhaps a city park, city hall, etc? The state capital?

    I had a few different scenarios in mind. On that I mentioned is a city-sponsored "street party" on public sidewalks and streets (closed to motor vehicles at the time). Another might be a state tax office (assuming that no court or court offices are in the same building). Another might be a county-sponsored party or fundraiser at a county park. In the kinds of cases I'm talking about, it's government-owned property generally open to the public which doesn't meet any applicable criteria from TPC 46.035.
     

    jordanmills

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    jordanmills,

    Hypotheticals are difficult if not impossible to fully flesh out because most of the time, each particpant has a slightly different idea, personal definition, or understanding of the situation. There's been plenty of internet gun forum discussions dealing with purely hypothetical scenarios eventually erupt into frothing-at-the mouth hate fests; complete with veiled threats to start shooting people should the hypothetical scenario ever become reality (not that they really mean it). On a side note, it's nice to see that Texas Gun Talk is relatively free of such sentiments.

    FWIW, Younggun has offered an excellent response to the hypothetical you've posed.

    May I respectfully ask if the scenario you introduced actually occurred anywhere in Texas? If so, where did it happen and where can we read more about it? Thanks for any info.

    I can assure you that the only thing that would cause me to start shooting people in a crowd would be if the entire crowd is assaulting me and I have nowhere to run - retreat seems the better course of action when one is outnumbered.


    Younggun is just jumping to a cop-out (no pun intended) to keep from having to think through it. I'm friends with lots of cops, and I generally do anything cops request that's reasonable, even if the law doesn't require me to. The point of this thread isn't to give some crackpot ammo for starting a fight with johnny law, it's to figure out what the law says in a scenario that's hypothetical because I didn't make a point of challenging it at the time.

    I was thinking specifically of the strand area of Galveston for this one. I went one year to the mardi gras stuff they had, when they did not have the streets closed, I was the driver so I was carrying and not drinking, and it turned out that I came pretty close to needing my gun (briefly, a couple of guys wanted to fight with us because a girl in our group didn't want to talk to him, we called the police, and an officer arrived and scared them off when they were feet from me deciding they were too close for safety). The next year, I went with a similar group, and they had the streets barricaded with staff and LEOs frisking people and running them through a metal detector before they could go in. It struck me not quite right, but I was planning on drinking so I wasn't carrying and didn't bother asking on the spot.
     

    jordanmills

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    If you get arrested it will be for arguing with the cop and telling him how "you know your rights".

    If asked to leave it would be wise to do so, at the very most give a respectful plea as to why you think you should not have to leave. If they disagree and say you must go then LEAVE and after you exit the building/premises contact the officers superiors and explain the situation that you have just encountered.

    Younggun, while not reffering to anyone in this thread, we have some anti authoritarians in our movement that go looking for a fight and often push until they get one. Kudos, your solution is very reasonable and uses common sense.

    And both of these completely ignore the question here for a simpering cop-out. If you don't have anything to add...
     

    Younggun

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    What do you mean by a "cop out"?

    You asked what your options are, that is the option that doesn't get you arrested.

    Maybe if you have plenty of money to throw at legal fees to prove your point there are other options, I have the one that can be used to have the problem corrected without the added cost and risk.


    Just because you don't like the answer doesn't make it invalid.
     

    Renegade

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    The fact is if the property owner does not want you there, you are getting kicked out. CHL, LEO, does not matter. We just saw this pissing contest with LEOS and the NFL. Nobody can force themselves onto someone else's property. You may have legal recourse later, but at the POE it is there rules.
     

    Sapper740

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    A lot of you guys aren't thinking far enough ahead. The battle against Gun Control is a never ending one and we lose when creeping normalcy works against us. A Right un-exercised for fear of official oppression is a Right lost since the outcome is the same: most of us won't Open Carry a long arm for fear of the consequences. The only reason the sight of two or three law-abiding men exercising their Right to OC is alarming is because of it's rarity. During my military career I was deployed to the Golan Heights to patrol the AOS (Area of Separation) between Israel and Syria and spent much of my off-duty time exploring the two countries. I always felt very safe in Israel because no matter where I was, there was an Israeli nearby with a Galil, an M16, or an UZI. One time while exploring the limestone caves near Nahariya I encountered a Kindergarten class on a field trip and their very young female teacher had a mint WWII U.S. M1 carbine slung over her shoulder. If only such common sense measures could permeate the hide-bound Libs running our schools! I can guarantee you if someone called the Mishteret Yisrael and reported a "man with a rifle!" the despatcher would impatiently ask you "Well, if they're not shooting, why are you wasting my time!" For those of you who's response to my post is that I'm not comparing apples to apples when I cite Israel, you're right, any city street in the U.S. is a far more dangerous place than any in Israel, hence an even greater imperative to exercise our rights.
     

    Younggun

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    I don't open carry a long gun because it would be a pain in the butt. It has nothing to do with fear of cops trying to arrest me. If I were going to Hicksville by myself I would sling it over my shoulder and take off. It's just not practical 99% of the time.

    As to losing right based on the subject of the thread: Why would the right be lost? You carry in a legal manner. An officer doesn't agree with you. So you contact someone who he will listen to because trying to debate it with the officer on the spot will be a losing fight and probably an expensive one.

    You might win in the end, but why win and possibly cost yourself thousands of dollars when you could get the problem corrected at little or no cost?
     
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