Theory that CHL+ Concealed handgun = I can carry an illegal knife/club

[Bithabus]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

Qualified immunity is there for a reason for officers and I think it needs to remain that way.

I don't see anyone arguing in this thread that Officers should not have qualified immunity. But, in my opinion, using it as a defense for arresting people for no reason is really pushing it.

 

[txinvestigator]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

Im wondering where you got the idea that an off duty peace officer, whether in his jurisdiction or not, has rights that surpass a civilians in terms of open carry. A cops right to open carry is a function of the office he serves, if youre off the clock, yaint servin that office are you?

Negative

Texas Penal Code

Sec. 46.15. NONAPPLICABILITY. (a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer's or investigator's duties while carrying the weapon

 

[txinvestigator]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

Its legal to OC a rifle.. but if I carry my M-4 carbine with the 100rd beta mag in it on my back down commerce street in downtown dallas, I would bet money that I would be clapped in irons and hauled off. No charges would be filed and I would get my rifle back, but I would still be arrested, still have the.paperwork to do, the whole nine yards... the moral here is, just because its legal doesn't make it a good idea. Unless you're just another one of those attention whores with asperations of becomming the next youtube sensation..

You would mkost likely be charged with Penal Code 42.01, and depending on how convincing you were you would probably get convicted.

 

[Kimber_me_timbers]

You would mkost likely be charged with Penal Code 42.01, and depending on how convincing you were you would probably get convicted.

Thats only if the weapon was displayed in a manner calculated to alarm, if I was swinging it around hollering "say hello to my wittle frien!!" Then yeah, I could see precident to bring charges under 42.01, but I never implyed such a thing did I? I simply stated that I would strap it to my back and put the mag in it and walk around. Hell, it could even be empty for all I care.

I don't doubt that I would be arrested, but theres no precident to charge and certainly not convict.

Look at the guys strapped with AR's at the obama rally! Those were loaded, and it wasnt just one guy, there was a mess of em. None were arrested.

 

[Kimber_me_timbers]

Oh and TI, thank you for posting the actual language pertaining to 5-0 24/7 OC. I couldn't find it myself.

I'd bet if you dressed in decent clothes, and was clean cut, you could walk around all day OC, and no one would say a thing about it..

Not worth it to risk it though.

 

[txinvestigator]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

Thats only if the weapon was displayed in a manner calculated to alarm, if I was swinging it around hollering "say hello to my wittle frien!!" Then yeah, I could see precident to bring charges under 42.01, but I never implyed such a thing did I? I simply stated that I would strap it to my back and put the mag in it and walk around. Hell, it could even be empty for all I care.

Yeah, I read what you wrote. It would be fairly easy for a LEO to have probably cause thaty you claculated to alarm when carrying a rifle over your shoulder downtown. Unless you had some REALLY good, believable excuse I think it would be an easy conviction. But what the hell do I know.

I don't doubt that I would be arrested, but theres no precident to charge and certainly not convict.

Do that and lemme know how it works out for ya.

 

[JustaPhule]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

 

[txinvestigator]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club


Don't know how I missed it, but your screen name cracked me up.

 

[Kimber_me_timbers]

Yeh TI, think ya kinda missed the whole pernt there buddy...

 

[ZX9RCAM]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

Yeh TI, think ya kinda missed the whole pernt there buddy...

I think he meant that even though YOU did not attept to alarm anybody, that people would be alarmed seeing it...maybe I am wrong.

I don't agree with it though, don't seem right if it's legal.

 

[Bithabus]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

Yeh TI, think ya kinda missed the whole pernt there buddy...

What is the point?

 

[txinvestigator]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

I think he meant that even though YOU did not attept to alarm anybody, that people would be alarmed seeing it...maybe I am wrong.

I don't agree with it though, don't seem right if it's legal.

No. I mean that any knucklehead with any sense would realize that, without some other purpose, carrying a rifle in downtown Dallas could easily be seen as calculated to cause alarm. How would you imagine it would NOT cause alarm; therefore, knowing that, what other reason could you have had? A jury could EASILY go there.

But I only have real experience with laws, investigating crimes, developing PC and the courts. So how would I know.

 

[ZX9RCAM]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

That's pretty much what I said except I did not have the "without some other purpose" added.


So, you are pretty much saying that in reality the "long arm" law is no longer legal...if one does not have some other purpose...and what real purpose would one have carrying a long arm down the sidewalk.

 

[Bithabus]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

That's pretty much what I said except I did not have the "without some other purpose" added.


So, you are pretty much saying that in reality the "long arm" law is no longer legal...if one does not have some other purpose...and what real purpose would one have carrying a long arm down the sidewalk.

To convict they have to prove beyond a reasonable doubt that you chose to carry the long arm because you wanted to cause alarm. When the Police make contact you should have a good story, such as " I went shooting earlier and I didn't want to leave my rifle in the truck because it could get stolen".

 

[Kimber_me_timbers]

To convict they have to prove beyond a reasonable doubt that you chose to carry the long arm because you wanted to cause alarm. When the Police make contact you should have a good story, such as " I went shooting earlier and I didn't want to leave my rifle in the truck because it could stolen".

+1

Any reasonable juror would see that my contention was not to cause alarm, the eye witnesses say they only saw me walking around with it and I wasnt waving it around, and my attorney would obviously point out that OC of a long arm isn't illegal.
Though my motives would be questionable or strange, it is not illegal. A guilty verdict would require all jurors to agree that a law had been broken.
Of course, this is only a hypothetical because I would never do something like that, I have far better things to do than test the system to prove a stupid point. That being said, I doubt it would even get to that point. The cops would probably just ask me to go ahead and put it up, and I would out of respect and the story ends.

This is not a dig at you TI, but do you think it may be possible that your experiences and whatnot may have instilled a kinda glass-half-empty approach? Its reasonable, seeing that kinda bullshit every day for as long as you have would make anybody a bit melancholy.

 

[M. Sage]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

"Reasonable juror?" You realize they weed out all the reasonable people right off the bat, right?

 

[Rum Runner]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

"Reasonable juror?" You realize they weed out all the reasonable people right off the bat, right?

This is why we need professional jurors IMO.

But yeah, you'd Bith's argument would a tough one.

 

[BigRed82]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

In regard to the idea of a "test case". What is there to test? Without some of the clutter that doesn't apply...

This is 46.02(all of it). The definitions are in 46.01, but don't matter if the law doesn't apply.


46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club. (b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor. (c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

This is 46.15(b). The only thing to read before (b) is the section number and title, since it starts right off with (a), which doesn't apply:

(b) Section 46.02 does not apply to a person who:

Interestingly, here's (b)(2):

(2) is traveling;

So the "traveling exemption" applies to clubs and knives, too.

The CHL bit...

(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
The only thing that makes this confusing is all the chaff you have to get past to find the relevant parts of the law.

http://www.statutes.legis.state.tx.us/docs/PE/htm/PE.46.htm

There's the entirety of 46. If we're wrong, show us exactly where. If it's got some kind of ambiguity that I'm missing, I'd love to see it.

*Disclaimer: Anything I say is conjecture and should not be considered legal advice. Legal advice on this matter should be sought from official legal sources or representatives of the Texas AG's office. Again, no actions should be based on anything stated here.*

Just a cautionary comment regarding 46.15(b)(2). Many courts have held that the traveling exemption from 46.02 ceases when you reach your destination. For example, in Malone v. State, the Texarkana Court of Appeals found just this November that an individual with a firearm in his car could be found by a fact finder to no longer be a traveler because he reached his destination, where he was staying for the night, before he then went on to attend a party. Additionally, in Royce v. State, the Austin Court of Appeals in August 2010 affirmed the conviction an off-duty security officer of unlawfully possessing a firearm because the jury determined that he was not traveling directly home from work. So regarding the traveling exemption, keep in mind that it is still not a carte blanche to be able to carry whatever you want in your car or on your person even with the changes made in 2007.


I think if 46.15(b)(6) only said "is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code" then the popular interpretation of the statute in this thread would be correct. The problem with the interpretation previously stated in this thread is that it does not take into account the meaning of the following phrase, "to carry a concealed handgun of the same category as the handgun the person is carrying."

This poorly worded phrase has the constructive effect of limiting the exception rather than expanding it. In other words, I think a court would interpret it to say - 46.02 does not apply to a person who is carrying a concealed handgun and license - TO carry a concealed handgun of the same category as the handgun the person is carrying. ie - the handgun the person is allowed to carry. Be it derringer, revolver, or pistol.

The interpretation of 46.15(b)(6) stated in the previous pages of this thread would render the differences in CHL qualifiers as unenforceable. I could qualify for my CHL with a revolver and then, according to that interpretation, carry whatever I please, including a pistol. This contradiction in application would force a court to interpret the statute in such a way that made sense with the hierarchy of conceal carry licenses.

Thus, 46.15(b)(6) would in all likelihood be interpreted by the courts to mean that it allows the license holder to be exempt from 46.02 TO carry a concealed handgun of the SAME CATEGORY as the handgun the person is carrying. This would be, in effect, a narrow exemption rather than a broad exemption from 46.02 due to this final key clause in the statute.

Probably the best thing to do is to simply ask the DA in your county how they interpret this statute. They are the ones you would face in the event of a violation. Better to work it out over the phone than in a courtroom.

 

[Mexican_Hippie]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

I get the case law but the whole point of a vehicle is to travel from point A to point B. It's a mode of transportation, by definition. I'm thinking there was a DA/Judge with an agenda combined with a bad defense attorney in those cases.

 

[Bithabus]

Re: Theory that CHL+Concealed handgun=I can carry an illegal knife/club

The interpretation of 46.15(b)(6) stated in the previous pages of this thread would render the differences in CHL qualifiers as unenforceable. I could qualify for my CHL with a revolver and then, according to that interpretation, carry whatever I please, including a pistol.

No you couldn't. In order to be exempt from 46.02 you must be carrying a concealed handgun and a license to carry a handgun of that category. There are only 2 categories. If you are carrying a concealed semi auto with a revolver license 46.02 still applies to you.