Texas Law Shield and Open Carry laws

[karlac]

How do the cops handle it in the other states with licensed open carry? Or unlicensed open carry?

Good question.
Hope someone who has lived in one and OC'd will answer.

 

[peeps]

Yes, when there is "reasonable suspicion" then ID must be provided. However the TLS video presents as fact something which is not fact: The TLS video stated "a police officer who observes a person openly carrying a handgun has reasonable suspicion". How can someone engaged in a perfectly legal activity give rise to "reasonable suspicion"? We're talking about someone walking down the street (after 1/1/16) minding their own business with their gun properly holstered OWB. Why should the police be allowed to come up to that person and demand ID when no law is being broken? Worse yet is when the cop approaches that person with their gun aimed at them.

Because carrying a handgun in public of Texas is not a lawful activity. Even after the new OC law. A LEO would have reasonable suspicion a person is violating because he cannot see your ID out in the open. Wording is important here. Having a license is a defense to prosecution to an unlawful activity.

 

[Big Dipper]

Because carrying a handgun in public of Texas is not a lawful activity. Even after the new OC law. A LEO would have reasonable suspicion a person is violating because he cannot see your ID out in the open. Wording is important here. Having a license is a defense to prosecution to an unlawful activity.

I believe that a convicted sex offender walking through a playground is not a lawful activity either. Do you also think that a LEO has RAS to stop any adult in the park who is not clearly a parent?

 

[ShootingTheBull]

I believe that a convicted sex offender walking through a playground is not a lawful activity either. Do you also think that a LEO has RAS to stop any adult in the park who is not clearly a parent?

Unfortunately, what we think doesn't have any bearing on what the law is or how it will be applied. Whether we think it's reasonable or not has no bearing on how the law is or will be applied.

As far as we know, right now, the law as-is is intended by the police to mean that they can indeed stop any OC'er and ask them for their license. And the only legal interpretation we've heard so far from anyone who's actually in the legal field, a lawyer for Texas Law Shield, interprets it to say that yes, the officers can detain an OC'er and ask for their license.

Could the lawyer be wrong? Yes, he could -- I mean, in every lawsuit that's ever settled, there's a lawyer on each side of the issue. But until we hear a ruling from a court (with jurisdiction in Texas) as to whether the police's (anticipated) behavior is legal or not, or until the legislature clarifies their intent in a future session, we can only go on what we do know, which is: the legislature intended to make it illegal for the police to stop and detain someone to see their license, the police objected, and that language was removed from the bill, which can be interpreted to say that the legislative intent was to remove that restriction on the police, and now an attorney has given his interpretation that that means that yes, the police can engage in this behavior.

That's how it stands now. I'm still open to hearing case law that contradicts this. I haven't found any yet. It may be that some Texas OC'er will have to be the test case, and will have to sue for 4th Amendment infringments, in order for the case law to get established.

 

[peeps]

Unfortunately, what we think doesn't have any bearing on what the law is or how it will be applied. Whether we think it's reasonable or not has no bearing on how the law is or will be applied.

As far as we know, right now, the law as-is is intended by the police to mean that they can indeed stop any OC'er and ask them for their license. And the only legal interpretation we've heard so far from anyone who's actually in the legal field, a lawyer for Texas Law Shield, interprets it to say that yes, the officers can detain an OC'er and ask for their license.

Could the lawyer be wrong? Yes, he could -- I mean, in every lawsuit that's ever settled, there's a lawyer on each side of the issue. But until we hear a ruling from a court (with jurisdiction in Texas) as to whether the police's (anticipated) behavior is legal or not, or until the legislature clarifies their intent in a future session, we can only go on what we do know, which is: the legislature intended to make it illegal for the police to stop and detain someone to see their license, the police objected, and that language was removed from the bill, which can be interpreted to say that the legislative intent was to remove that restriction on the police, and now an attorney has given his interpretation that that means that yes, the police can engage in this behavior.

That's how it stands now. I'm still open to hearing case law that contradicts this. I haven't found any yet. It may be that some Texas OC'er will have to be the test case, and will have to sue for 4th Amendment infringments, in order for the case law to get established.

Precisely, well said.

I believe that a convicted sex offender walking through a playground is not a lawful activity either. Do you also think that a LEO has RAS to stop any adult in the park who is not clearly a parent?

No, unless they recognize the individual. Further, if they observe strange behavior or have a hunch, I bet they can watch to see if they commit any other crimes. Then run the suspect's ID.

 

[karlac]

I'm still open to hearing case law that contradicts this. I haven't found any yet. It may be that some Texas OC'er will have to be the test case, and will have to sue for 4th Amendment infringments, in order for the case law to get established.

Well said.

I for one look forward to case law establishing some favorable precedence for our Constitutional rights, in Texas, on this issue.

While it may be a long arduous process, I do believe that will end with a longer lasting results than legislation that can be consumed by future exceptions and amendments.

Just too damn much change in the demographics of the state for my comfort.

 

[Big Dipper]

Because carrying a handgun in public of Texas is not a lawful activity. Even after the new OC law. A LEO would have reasonable suspicion a person is violating because he cannot see your ID out in the open. Wording is important here. Having a license is a defense to prosecution to an unlawful activity.

The bolded statement is not correct.

Section 46.15 specifically states that Section 46.02 [Unlawful Carrying Weapons] does not apply to a person who is carrying a license and a handgun in a concealed manner (amended by HB910 to include in a shoulder or belt holster).

 

[Shady]

Well if you really look forward to it are you going to be out there on the first in Austin trying to be the one who gets to test it lol

Well said.

I for one look forward to case law establishing some favorable precedence for our Constitutional rights, in Texas, on this issue.

While it may be a long arduous process, I do believe that will end with a longer lasting results than legislation that can be consumed by future exceptions and amendments.

Just too damn much change in the demographics of the state for my comfort.

 

[Mreed911]

The bolded statement is not correct.

Section 46.15 specifically states that Section 46.02 [Unlawful Carrying Weapons] does not apply to a person who is carrying a license and a handgun in a concealed manner (amended by HB910 to include in a shoulder or belt holster).

Actually, he's right, which is the point I've been making. "Does not apply" equals "a defense to prosecution" the way our code is constructed. Prior attempts to change that to "it is an exception," which would change the burden of proof to the state, have failed. This is why it is exactly as illegal for a police officer or ANY other reason listed in 46.15 to carry as a CHL'er. Technically you could be arrested and prove out the defense in court, be it a valid CHL, a valid peace officer license and commission, etc.

There has long been argument over whether officers can and should make arrests where a defense to prosecution exists at the time of arrest. Some DA's/CA's say no, others say yes.

 

[Mreed911]

Well if you really look forward to it are you going to be out there on the first in Austin trying to be the one who gets to test it lol

I will, but only in the sense of openly carrying while going about normal activities in normal, non-posted places.

 

[Big Dipper]

Actually, he's right, which is the point I've been making. "Does not apply" equals "a defense to prosecution" the way our code is constructed. Prior attempts to change that to "it is an exception," which would change the burden of proof to the state, have failed. This is why it is exactly as illegal for a police officer or ANY other reason listed in 46.15 to carry as a CHL'er. Technically you could be arrested and prove out the defense in court, be it a valid CHL, a valid peace officer license and commission, etc.

There has long been argument over whether officers can and should make arrests where a defense to prosecution exists at the time of arrest. Some DA's/CA's say no, others say yes.

Do you have a citation on that? "Does not apply" sure sounds like an exception to me, especially since the Texas PC does use the phrase "defense to prosecution" in many sections where that is the intent -- like displaying a handgun when used in one's defense.

 

[karlac]

Well if you really look forward to it are you going to be out there on the first in Austin trying to be the one who gets to test it lol

Won't be in Austin, but won't do anything different when carrying.
Mind my own business, and be courteous and respectful to any man doing his job.

 

[Mreed911]

Do you have a citation on that? "Does not apply" sure sounds like an exception to me, especially since the Texas PC does use the phrase "defense to prosecution" in many sections where that is the intent -- like displaying a handgun when used in one's defense.

Not in front of me, but the controlling law is that anything not otherwise marked is declared a defense to prosecution. I'll look that up later, but it's a common mins understanding that requires judicial level understanding as to what an actual exception is vs a defense or affirmative defense.

That's the root of the problem.

 

[Bithabus]

Does not apply means a defense. Handgun carry is illegal in texas. Cops can stop open carriers. The difference is that driving a vehicle is not illegal per se and handgun carry is.

 

[Bithabus]

It's already gone all the way up. Look at some travelling cases if you're interested. Travelling is a defense just like chl because the words used are " does not apply" . Exceptions must be clearly labeled. Would be an awesome bill next session to change this

 

[IXLR8]

So, what if you get in a heated verbal argument with someone, and you are OC'ing? Does that change to your status to one of alarming the bystanders? By virtue of being armed and angry causes others to be frightened. Does that change your rights?

So many questions.... I think you will need to be far more careful in your actions while OC'ing.

 

[Renegade]

So, what if you get in a heated verbal argument with someone, and you are OC'ing?

Then you are an idiot.

 

[IXLR8]

There are no shortage of idiots anywhere....

 

[peeps]

So, what if you get in a heated verbal argument with someone, and you are OC'ing? Does that change to your status to one of alarming the bystanders? By virtue of being armed and angry causes others to be frightened. Does that change your rights?

So many questions.... I think you will need to be far more careful in your actions while OC'ing.

Better call 911 first

 

[BIGPAPIGREG]

Then you are an idiot.