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

Discussion in 'Texas Concealed Handgun (CHL)' started by jordanmills, Oct 12, 2013.

  1. jordanmills

    jordanmills Well-Known

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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.
     


  2. txinvestigator

    txinvestigator TGT Addict

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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.
     
  3. jordanmills

    jordanmills Well-Known

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    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.
    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.
     
  4. txinvestigator

    txinvestigator TGT Addict

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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.
     
  5. jordanmills

    jordanmills Well-Known

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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.
     
  6. txinvestigator

    txinvestigator TGT Addict

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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?
     
  7. Texan2

    Texan2 TGT Addict

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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.
     
  8. Texan2

    Texan2 TGT Addict

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    I have never seen someone arrested "just because".
     
  9. Younggun

    Younggun Doer of Deeds TGT Supporter Admin

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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.
     
  10. Texan2

    Texan2 TGT Addict

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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.
     


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