Am I understanding this

[picker]

Leo's have no right to stop and question an open carry individual, simply because they are open carrying
01/2016 ?
Best/picker

http://trailblazersblog.dallasnews....carry-in-legislatures-open-carry-debate.html/

 

[Mreed911]

No, the amendment was stripped. Short version: case law and interpretation elsewhere says no, but in Texas we have a specific requirement on a CHL'er to produce ID/CHL when asked, so it'll take a court fight to slap down departments that abuse that power.

Opinions here are divided on whether OC brings up reasonable suspicion since only 5% of Texans have a CHL (so only 1 out of 20 ppl have the ability to OC under current law) vs. the "OC is legal until proven otherwise, which requires reasonable suspicion for something else."

 

[nonameisgood]

If you read the legislative record on the debate, there was no disagreement that after Jan 1, an officer will be prohibited from using ONLY the open carrying of a holstered handgun as a reason to make a stop. Even the guys who pursued removal of the amendment agreed with this. That said, it was clear that the law enforcement community intends to disregard case law and did not want a restriction imposed on their authority to stop open carriers. Otherwise, the amendment would have protected them.
In the record, there was an exchange about officers being able to strike up conversations wherein they ask if the person has a license to carry the same as if asking about the weather. This seems disingenuous and harmful to law enforcement generally. I expect that an officer asking such a question is asking in an official capacity by virtue of the nature of the question and the legal capacity of the officer. In fact, the legislature has (unofficially) said that one is under no obligation to chat with this officer unless the officer states plainly that the stop is not consensual. (I'm guessing the phrase, "I stopped you because X" or something similar is required.)


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[bones_708]

The thing is there is no direct case law on this situation. Generally speaking most assume that a court would rule that just carrying a firearm openly would no more be a reason to stop and ask for a licence than driving a car would be. For a vehicle stop police must at least have reasonable suspicion. Combine that with the rulings of courts that legal possession of a gun alone does not constitute RS and you have a pretty good case that stopping someone just to check if they have a carry license should violate the 4th. That being said a court could always say different. It would really only come up if you were stopped and it somehow led to an arrest. If you were carrying legally and weren't doing anything then you wouldn't be arrested so you can't appeal and a court wouldn't be ruling on how your rights were violated. If you do get arrested and convicted then you did something illegal and would be getting away with it if the courts ruled your rights were violated. They don't necessary like setting crooks free and the precedent isn't direct enough to keep a court from ruling against the stop being unconstitutional. Without an arrest you could sue for rights violations but what if you lost? Right now most departments would be leary of requesting ID without at least some fig leaf of RS. If someone took a case to court and lost it would be a huge loss of what is assumed as a constitutional protection.

 

[leVieux]

>

Please, let's not make this difficult for our police officers.

This is a big change for most and misunderstandings can be expected.

Here in New Orleans, where we have longstanding state law, two AG letters, a constitutional amendment or three, and a federal court order; all aimed at preventing LEO's from harassing O.C. folks, we still have some problems.

Be patient, be COURTEOUS, please.

leVieux

 

[nonameisgood]

Herein lies the problem: we are being asked to allow a violation of our rights, rather than requiring restraint by "trained, professional law enforcement officers." If an officer is not expected to know and abide by the law and respect our rights, how can we be expected to know the law and assert our rights, or know how to act when confronted by an officer?


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[txinvestigator]

If you read the legislative record on the debate, there was no disagreement that after Jan 1, an officer will be prohibited from using ONLY the open carrying of a holstered handgun as a reason to make a stop. Even the guys who pursued removal of the amendment agreed with this. That said, it was clear that the law enforcement community intends to disregard case law and did not want a restriction imposed on their authority to stop open carriers. Otherwise, the amendment would have protected them.

Texas has case law regarding LE checking for a license for a person carrying openly? Can you cite a source?

 

[txinvestigator]

The thing is there is no direct case law on this situation. Generally speaking most assume that a court would rule that just carrying a firearm openly would no more be a reason to stop and ask for a licence than driving a car would be. For a vehicle stop police must at least have reasonable suspicion.

That is absolutely right! Reasonable Suspicion requires less than probable cause. The penal code is not worded or formed like the transportation code.

Penal code 46.02 makes it unlawful to carry a handgun unless you meet the premises or vehicle exceptions. Therefore, if a LEO sees a person carrying a handgun he has immediate PROBABLE CAUSE to believe a violation of penal code 46.02.

Penal Code 46.15(b) makes 46.02 non-applicable if the person POSSESSES a License to Carry.

If a LEO sees your handgun he can ask for the display of your license. Refuse and you go to jail for UCW (penal code 46.02) perfectly legal arrest.

Let me ask you this, if you are carrying concealed TODAY, and your handgun becomes visible, can a LEO not ask if you are licensed?

A Security Officer obtains his ability to carry a handgun from the same section of law that a CHL holder does. It is long established that a Peace Officer has legal authority to demand the display of the Security Officer commission. Refusal can and has resulted in an arrest.

 

[txinvestigator]

Herein lies the problem: we are being asked to allow a violation of our rights,

No, you are not.

 

[Moonpie]

I'm not seeing the heartburn.

Po-Po questions you while you're OC'ing........hand him CHL...............Po-Po leaves. Have I got that correct?

Act a fool and Po-Po takes you for The Ride. Have I got that correct?

 

[ROGER4314]

Only a fool would cite the law and refuse to comply with an LEO who is checking for a valid CHL. That's a fight that will end badly. If a cop tells you to do something, it's better to comply or they'll find a way to make you unhappy.

One of our members had a nightmare over open carry of a knife. He can elaborate if he wants to.

I'm not afraid, only realistic.

Flash

 

[nonameisgood]

Yes, that IS the problem.
"The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That one has to worry that they will be subject to (illegal) search and seizure on the whim of an officer is the problem. We all know that most law enforcement officers do their best, they mean well, and they aren't abusive. We also have seen instances where because of the "vagueness" of a law or overreach of the officer "things have gone badly". (Quoted because I'd say shooting non-criminals for not breaking the law rises above this understatement.)
Some of us pushed for OC as a step to regain rights lost because control in the name of law enforcement took precedence over existing rights.
As far as I am concerned, there is no reason to check a license since carrying a handgun results in no harm to anyone. Law enforcement should be concerned with apprehending violent criminals and those doing dangerous, illegal things rather than those doing nothing dangerous but possibly committing a minor infraction.
Officers unquestionably have the authority to query a know member of an illegal street gang or known felon, since these people are prohibited from carrying (and in most cases, from possessing a firearm.) There are many similar instances, but me walking down the street with a handgun carried visibly in a belt or shoulder holster is not one of them.
As to the casual questioning of a passerby, I do not think that it is appropriate because people are taught to respect the officer's uniform and position, which creates a de facto coercion to particulate in the conversation, as the previous two posts demonstrate.


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[texas skeeter]

Only a fool would cite the law and refuse to comply with an LEO who is checking for a valid CHL. That's a fight that will end badly. If a cop tells you to do something, it's better to comply or they'll find a way to make you unhappy.

One of our members had a nightmare over open carry of a knife. He can elaborate if he wants to.

I'm not afraid, only realistic.

Flash

I agree, do you really want to be put in the situation to possibly spend a bunch of $ to prove your point? Show proper documentation and go happily on your merry way...

 

[ZX9RCAM]

I agree, do you really want to be put in the situation to possibly spend a bunch of $ to prove your point? Show proper documentation and go happily on your merry way...

That's a scary statement, lol....

 

[nonameisgood]

Texas has case law regarding LE checking for a license for a person carrying openly? Can you cite a source?

Sorry, my browser didn't load a couple of posts before I posted my last.
The problem is not my misunderstanding, it is that, while saying "case law prohibits this", the legislators who improperly removed the adopted amendment probably knew that it did not and tricked the others into adopting their improper, 23rd hour changes.
I personally think that case law is a reflection of practice and an interpretation which is rendered because of problems. Obviously we do not have this yet, but that does not change the recorded conversations of the legislature that state that there is case law that would apply.


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[nonameisgood]

No, you are not.

And this is where we do not agree.


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[matefrio]

Only a fool would cite the law and refuse to comply with an LEO who is checking for a valid CHL. That's a fight that will end badly. If a cop tells you to do something, it's better to comply or they'll find a way to make you unhappy.

One of our members had a nightmare over open carry of a knife. He can elaborate if he wants to.

I'm not afraid, only realistic.

Flash

If it's my case you're referring to ......

I complied with the officers request for ID, before the cuffs, and handed them my CHL at the same time.

Once I had the cuffs on I knew where things were headed and wasn't going to make things worse.

At no time was I at odds with the officers requests to comply.

I treated them well I hope and they I under the circumstances.

 

[Whistler]

What the hell, I'll put on the flame suit...

It's difficult to have a discussion about this issue on TGT because too many here have the perception law trumps justice, always comply and "tell it to the judge" later. I understand their point of view, in America today you have little choice, comply or suffer, right or wrong. TXI is right that carrying a handgun in Texas is illegal and all we've managed to accomplish over all these years of fighting is to gain a few exemptions.

In my mind it's completely backwards and directly at odds with 2nd Amendment protections. It presumes guilt rather than innocence and mandates you "prove" you aren't breaking the law versus LEO proving you are as restricted by the 4th Amendment. This has become pervasive in our society due to the subtle shift in attitudes preferring the illusion of safety by permitting "acceptable" infringement of our rights and freedoms and assumes the ability to challenge in court sufficient to afford protection of those rights and freedoms. Unfortunately that is seldom the case as our courts typically lean toward supporting their own, justice is always secondary to the law.

I disagree with that view as well as we've all watched the erosion of those safeguards through the years supported by folks that believe LEO should have every tool at their disposal to combat criminal activity including committing the same infractions, suspension of Constitutional protections, strongarm tactics and all manner of unsavory actions. Those folks argue we are a "nation of laws" and that is the highest priority, I argue we are a nation of free men and THAT is the highest priority, with just enough law to minimize chaos and anarchy. Obviously I am in the minority and am admittedly idealistic in my views.

I understand it's a difficult job and that criminals have become adroit at exploiting every aspect of the law to escape justice however I do not agree the correct response is to allow LEO to operate in the "gray areas". I don't believe the ends justify the means and that it's a slippery slope as we've seen with no-knock raids, SWAT serving simple warrants, militarization of LEO tactics and gear in small towns across America, fun little debacles such as Fast&Furious and infringements too numerous to list. I am not a "cop hater", I typically respect LEOs at an individual level, it's the system I perceive is broken.

Freedom is messy and it assumes we err on it's side even if that means a few escape immediate penalties for exceeding the boundaries of social norms. I know what the law is and I know my opinions will change nothing about the way it is enforced but that doesn't mean I have to like it and thank God for the 1st, it doesn't mean I can't bitch about it.

 

[Hoji]

What the hell, I'll put on the flame suit...

It's difficult to have a discussion about this issue on TGT because too many here have the perception law trumps justice, always comply and "tell it to the judge" later. I understand their point of view, in America today you have little choice, comply or suffer, right or wrong. TXI is right that carrying a handgun in Texas is illegal and all we've managed to accomplish over all these years of fighting is to gain a few exemptions.

In my mind it's completely backwards and directly at odds with 2nd Amendment protections. It presumes guilt rather than innocence and mandates you "prove" you aren't breaking the law versus LEO proving you are as restricted by the 4th Amendment. This has become pervasive in our society due to the subtle shift in attitudes preferring the illusion of safety by permitting "acceptable" infringement of our rights and freedoms and assumes the ability to challenge in court sufficient to afford protection of those rights and freedoms. Unfortunately that is seldom the case as our courts typically lean toward supporting their own, justice is always secondary to the law.

I disagree with that view as well as we've all watched the erosion of those safeguards through the years supported by folks that believe LEO should have every tool at their disposal to combat criminal activity including committing the same infractions, suspension of Constitutional protections, strongarm tactics and all manner of unsavory actions. Those folks argue we are a "nation of laws" and that is the highest priority, I argue we are a nation of free men and THAT is the highest priority, with just enough law to minimize chaos and anarchy. Obviously I am in the minority and am admittedly idealistic in my views.

I understand it's a difficult job and that criminals have become adroit at exploiting every aspect of the law to escape justice however I do not agree the correct response is to allow LEO to operate in the "gray areas". I don't believe the ends justify the means and that it's a slippery slope as we've seen with no-knock raids, SWAT serving simple warrants, militarization of LEO tactics and gear in small towns across America, fun little debacles such as Fast&Furious and infringements too numerous to list. I am not a "cop hater", I typically respect LEOs at an individual level, it's the system I perceive is broken.

Freedom is messy and it assumes we err on it's side even if that means a few escape immediate penalties for exceeding the boundaries of social norms. I know what the law is and I know my opinions will change nothing about the way it is enforced but that doesn't mean I have to like it and thank God for the 1st, it doesn't mean I can't bitch about it.

Well said.

 

[matefrio]

What the hell, I'll put on the flame suit...

It's difficult to have a discussion about this issue on TGT because too many here have the perception law trumps justice, always comply and "tell it to the judge" later. I understand their point of view, in America today you have little choice, comply or suffer, right or wrong. TXI is right that carrying a handgun in Texas is illegal and all we've managed to accomplish over all these years of fighting is to gain a few exemptions.

In my mind it's completely backwards and directly at odds with 2nd Amendment protections. It presumes guilt rather than innocence and mandates you "prove" you aren't breaking the law versus LEO proving you are as restricted by the 4th Amendment. This has become pervasive in our society due to the subtle shift in attitudes preferring the illusion of safety by permitting "acceptable" infringement of our rights and freedoms and assumes the ability to challenge in court sufficient to afford protection of those rights and freedoms. Unfortunately that is seldom the case as our courts typically lean toward supporting their own, justice is always secondary to the law.

I disagree with that view as well as we've all watched the erosion of those safeguards through the years supported by folks that believe LEO should have every tool at their disposal to combat criminal activity including committing the same infractions, suspension of Constitutional protections, strongarm tactics and all manner of unsavory actions. Those folks argue we are a "nation of laws" and that is the highest priority, I argue we are a nation of free men and THAT is the highest priority, with just enough law to minimize chaos and anarchy. Obviously I am in the minority and am admittedly idealistic in my views.

I understand it's a difficult job and that criminals have become adroit at exploiting every aspect of the law to escape justice however I do not agree the correct response is to allow LEO to operate in the "gray areas". I don't believe the ends justify the means and that it's a slippery slope as we've seen with no-knock raids, SWAT serving simple warrants, militarization of LEO tactics and gear in small towns across America, fun little debacles such as Fast&Furious and infringements too numerous to list. I am not a "cop hater", I typically respect LEOs at an individual level, it's the system I perceive is broken.

Freedom is messy and it assumes we err on it's side even if that means a few escape immediate penalties for exceeding the boundaries of social norms. I know what the law is and I know my opinions will change nothing about the way it is enforced but that doesn't mean I have to like it and thank God for the 1st, it doesn't mean I can't bitch about it.

To need to choose your battles though and pick your ground and timing to win. This includes securing backing.

In my case I had the right lever just not the right placement of the fulcrum. If I'd been more prepared the results would have had more of an impact.

Protesting during a stop or an arrest is not a wise use of resources when it comes to wanting to change things.