A raging debate nearly derailed the new Open Carry law in Texas (which will take effect on January 1). It centered around the so-called “Dutton Amendment” or “Dutton/Huffines Amendment.” Briefly stated, the amendment forbid police officers from stopping and detaining an open-carrier to check them for possessing a handgun license – if their suspicion that a crime is being committed is solely based on the evidence that they were carrying a gun. This amendment was excoriated by Austin Police Chief Acevedo when it was first adopted . . .
Representative Dutton introduced the amendment as a measure to prevent police from using the new Open Carry law being used to racially profile and harass minorities. It was passed by the House by an overwhelming margin (133-10), but stripped out of the bill by the Senate. Senator Huffines re-added the amendment to the bill as a necessary protection against hassle and police abuse of power.The bill’s author (Senator Estes) and committee chair (Senator Huffman) both argued against adoption of the amendment, stating it was “unnecessary.”
The amendment created some strange bedfellows: a coalition of left-wing Democrats and tea-party Republicans, both concerned about potential 4th Amendment violations. They banded together to overrule the more centrist Republican majority and add the amendment back in to the bill.
That’s when all hell broke loose.Police unions and associations (e.g., the Combined Law Enforcement Association of Texas or CLEAT) inundated the legislators with calls, Tweets, in-person meetings and emails objecting to the amendment. They told senators saying that officers had told them that the amendment would put officers’ lives in danger, neighbors’ lives in danger, friends’ lives in danger, childrens’ lives in danger. The amendment was stripped from the bill in conference committee, after testimony on the Senate floor went hyperbolic.The bill passed without the amendment.
When the dust cleared, Senators Estes and his colleague reverted to the argument that the prohibition against stopping open carriers merely because they are open carriers is “settled Constitutional law.” True?Maybe. Maybe not. Contrary to Estes’ public statements, the law isn’t definitively settled. I’m not a lawyer, but I have stayed at Holiday Inn Expresses and I’ve done a little digging. So let’s examine what the question and the case law say.
First, the question: is it legal under the 4th Amendment to the US Constitution for a law enforcement officer to ask a person carrying an openly carried handgun (where carrying such handgun is legal with a permit) to see that person’s permit? The answer is, unquestionably, yes. It is currently legal for a police officer to engage in a “consensual interaction” with any citizen and ask them any question that they want. There are three general levels of police interaction with citizens: a consensual interaction, a Terry stop (see: below) and an arrest.
An officer may ask an Open Carrier to “show me your papers” in a consensual scenario. The key word being “consensual.” The officer may ask to see a Concealed Handgun License, but the citizen does not have to agree to show the permit. In fact, the citizen have to agree to the interaction with the officer. This is why so many “open carry” YouTube videos feature the open carriers saying “am I being detained?” and “am I free to go?” A consensual interaction is not a detainment. An officer is free to ask you a question and you are free to answer or choose not to answer. You may choose to show him your permit, or you may choose to ignore the interaction.
What if the open carrier does not consent? Here’s where it gets tricky . . .
According to Senator Estes, the officer cannot detain you or arrest you for failing to produce your license, under protections granted by the US Constitution’s 4th Amendment protection against unreasonable searches and seizures. Estes asserted that there had been two Court rulings on this subject that clearly established the law. He didn’t specify what the Court rulings were. In researching this subject, I’ve found four rulings frequently cited as precedent for the licensed open carry situation.
First is the well-known US Supreme Court ruling on “Terry stops‘ as determined in Terry vs. Ohio. This ruling established that police officers are entitled to “stop and frisk” someone when they have reasonable suspicion that person may be committing or about to commit a crime.
In Texas, openly carrying a handgun has been a crime since 1872. Anyone openly carrying a handgun today (prior to HB910 being signed into law and taking effect) would be committing a crime. After the law goes into effect, it would still be a crime for approximately 97 percent of the adults in Texas (only about three percent of the adult population of Texas have the Concealed Handgun License that will make open carry legal).
So it could potentially be argued that 97 percent of the time, someone observed openly carrying a handgun would be committing a crime. Right? Not necessarily.
That brings us to Delaware v. Prouse. In that case, the United States Supreme Court held that police officers cannot stop a driver merely to check if that driver has a license. Doesn’t this apply to guns too? Again, maybe, maybe not. While it looks promising, a gun is not a car. There is no restriction on who may or may not own a car. Convicted felons, for example, can own cars. But not guns. Whether the legal-with-a-license provisions apply equally to open carriers as they do to car drivers is not an area that the Supreme Court has clarified.
That brings us to case #3, the 6th Circuit Court ruling in Northrup vs. Toledo Police Dept. In it, Northrup was walking his dog, with an openly and legally carried firearm on his hip. A passing car called in a “man with a gun. An officer detained Northrup for 90 minutes, threatened him with arrest for “inducing panic”, etc. The ruling from the three-judge panel: that this was a clear violation of Northrup’s 4th Amendment rights. It’s a superb ruling, and well worth a read (or, if you want the highlights, see Greg Ellifritz’s commentary on the case).
Surely Northrup settles the matter, right? Well… no.
First, this wasn’t a complete hearing in front of the entire 6th Circuit; it was a three-judge panel. Potentially it could be appealed to the entire Circuit Court “en banc,” where it might be overturned. Secondly, and more importantly, this was a ruling from the 6th Circuit Court of Appeals, not the US Supreme Court. The ruling is binding only on those states over which the 6th Circuit has jurisdiction.
Texas is in the 5th Circuit, not the 6th. While the Justices of the 5th Circuit could look to the decisions of the 6th Circuit for guidance they are under no obligation to do so; rulings in the 6th Circuit are not binding on the 5th Circuit. So while it may be a matter of settled Constitutional law in the States that are under the 6th Circuit, that doesn’t necessarily make it a matter of settled Constitutional law in Texas, yet.
The fourth case that I found of interest is from the 4th Circuit Court of Appeals: Nathaniel Black. In that case, a man (Dior Troupe) was openly carrying a firearm, which is legal in North Carolina. Officers suspected that Troupe and his associates might be engaged in criminal activity. If one firearm was present, well, maybe there were more (as per their training).
With no other evidence, they decided to frisk the men one by one. Nathaniel Black tried to leave, but they prevented him. He ran. When they searched Black they found a concealed firearm. As a felon, he was charged. Eventually he sued. The court made several interesting observations. The case is well worth a read. Here’s the part of most interest to the firearms community:
“. . . it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms . . . Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. . . .
We are not persuaded. Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”
Now, that’s compelling and good news, surely. Note, however, that the case wasn’t about Troupe and his handgun. It was principally about Black. The case revolved around whether the presence of Troupe’s openly-carried handgun justified the officers to detain and search his friends. The plaintiff in this case was not openly carrying a handgun, nor was he stopped to check for a handgun license. And, finally, this ruling is from the 4th Circuit, not from the US Supreme Court. Again, it would be helpful as a starting point for Texas courts to look for guidance but I don’t believe it could be considered binding.
Returning to the initial question then — is it lawful for an officer to stop an open-carrier to check for a license? Sometimes the courts have ruled no. Sometimes they’ve ruled yes. Check out this case from this week, Deffert vs. Moe.
Johann Deffert strapped on a tactical pistol with a tactical light and laser into a tactical thigh holster, put on his camos, and hung around outside a church while belting out “Hakuna Matata” loudly (loud enough that the officer in the case could clearly hear it from inside his patrol car). In this case, a citizen found the behavior alarming enough to call 911. The responding officer felt that there could be questions about Deffert’s mental stability. Michigan law says that mental illness may prevent issuing of a firearms license. The officer detained Deffert long enough to run a Law Enforcement Information Network (LEIN) check.
Deffert sued. The Court ruled that the officer had enough reasonable suspicion, and that the officer detained Deffert the minimal amount of time necessary to verify his concerns and validate his license.
Another example (also from the 6th Court) is Embody vs. Ward.
In this case, Leonard Embody strapped an AK-47 pistol across his chest, put on his camos, and went to a State Park. He expected to be stopped, and he was. Note: he wasn’t doing anything illegal. What he did was legal by Tennessee law. Handguns, as defined as having a barrel length less than 12″ and designed to be operated by one hand, are legal in Tennessee parks. A Park Ranger disarmed and detained Embody while he took the time to determine whether the pistol was legal under Tennessee law. Embody sued him, claiming violations of his 2nd, 4th, and 14th Amendment rights. The court ruled against Embody.
This case is interesting in that Embody had two encounters with Park Rangers. In the first, the Ranger asked to see his license, which he produced. However, the Ranger wasn’t sure that an AK47 (with 11.5″ barrel) qualified as a “handgun”, so he called his supervisor, who ordered a “felony takedown” to disarm Embody and check the weapon. Embody was ordered to the ground at gunpoint and disarmed and patted down. He wasn’t arrested but he was detained.
The Judges found this situation reasonable, in that the pistol (with attached 30-round magazine) certainly looked like a rifle, was carried like a rifle, and Embody had gone so far as to paint the tip of it orange, which an officer could reasonably suspect was an attempt to disguise a weapon as a toy. Cumulatively, the Justices felt that this all added up to sufficient reasonable suspicion to detain and disarm Embody. This case isn’t directly related to the issue of whether an officer can check someone for a license, but it is a case of where an officer can detain someone that they suspect of doing something illegally, even though in the end it turned out to be entirely legal.
As far as I can tell, this matter is not settled and probably won’t be settled until the US Supreme Court rules on it. What does seem clear is that if you act in a way that is considered provocative, you can expect more police attention and perhaps less leeway from the courts. One thing we can be sure of: the Dutton/Huffines amendment would have clarified this scenario for Texas CHL holders who want to exercise their right to open carry.
Given the vehement opposition from the police associations to the Dutton/Huffines amendment, one would perhaps infer that the police intend to check open carriers for handgun licenses. One can presume that some of these interactions may be consensual, but some may certainly not be. It may be that there will be instances, there will be detainments, there will be arrests, and there may need to be lawsuits before this issue is finally clarified in Texas. Or at the Supreme Court.
if you are dressed well enough and it is in a holster, they probably will leave you alone. Put on camos and a chest rig, expect to meet the pavement at gunpoint.
I have open carried. People thought I was an off duty officer and no one panicked. I also didn’t go out of my way to draw attention to myself either.
This is part of the problem. OC should be available to anyone, regardless of how they look (including skin color and fashion choices).
It’s like saying free speech is cool only if you speak “the queens” with a British accent.
yep. if you dress bad ass you will be stopped. dress normal and they might ask you where you practice and join you for some fun. did for me. if i carry or have them in the car i always expect ?s and so far they have been respectful and curious. yep even in NJ (without the carry) lol
I guess the 4th Amendment only applies if you’re well-dressed?
Grindstone, Real World. Real World, Grindstone. Wanted to introduce you to each other!
Thanks for that CG you just made me magically delicious Dr. Pepper from my nose
I guess Southwest Ohio isn’t in the real world, huh? 😉 I’m rarely ever “well dressed” and I open carry every day. I’ve seen plenty of people dressed in all sorts of clothes (BDUs, grunge, “Militia” jackets, Guy Fawkes masks, etc) carrying openly without issue. Heck, I’ve even seen “Fvck the Police!” shirts on OCers. At the last DUI checkpoint event most of us were openly armed. We were up in the checkpoint next to officers telling drivers not to talk to police and before the checkpoint reminding drivers to turn away. At least two people were regularly flipping off police and telling them to get real jobs. (I don’t do that because I tend to be polite.) To their credit, no officer even batted an eye. But, I guess this isn’t the real world.
“…I also didn’t go out of my way to draw attention to myself either.”
This.
Years ago, one of my best friend’s had a girlfriend that none of us could stand… seriously, I got tired of always complaining about her, so I sat down one day to think of one nice thing about her. I gave up after an hour. Anyways, she was 5’2″ and 180lbs, so she was… ahem… a bit “chesty”. Whenever we went to a bar, she would wear the tightest, lowest cut top she could find, and then complain about guys looking at her boobs.
Sometimes, I think a lot of open carriers are like my friend’s ex girlfriend.
Mike,
Have you been to Texas in the summer? It’s HOT. Not hot, but really, really HOT. Today, every time I step out of my truck to get gas, I have to either remove my firearm or put on an extra shirt or jacket. Come January, I can stop at the gas station, step out of my truck, fill it up and never have to worry about breaking the law. I can hike through our gorgeous state parks without adding an extra layer of clothing to cover my firearm and I can walk my two dogs in the hot, humid evenings without sweating through an extra shirt.
Most CHL holders do NOT carry to draw attention to themselves. They carry to protect themselves and their loved ones from harm. Intact, for most of the cooler months, you’d never know most of the 800,000+ folks were carrying. It’s not about attention, its about protection.
I’m in Texas I carry cash for my job. I work alone at night in the cities worst areas. I carry a gun an will shoot somebody if I hve to to defend myself against a robbery. I would MUCH rather not have to shoot somebody. Open carrying will allow me to use the fire arm as a deterrent more effectively. Just like an armed security gaurd at a jewelry store or bank, I will provide a deterrent to a would be robber. Maybe I have 100 bucks maybe a thousand but for sure I got 19 i. The mag and one in the pipe. There are criminals who rob people they know are armed. There are not too many of them and the ones that are still alive usually rob VERY high value targets. The risk of getting shot for 1000 as opposed to 20,000 or 100,000 just does not make sense.
Bottom line for the change and the dissent was the LE did not want to give up their CONTROL and power over the people.
More fascist BS.
Any moron PULLING a weapon from a holster in public is asking for death, UNLESS there is JUST CAUSE for doing so.
Like self defense.
United States Supreme Court
FLORIDA v. J. L.(2000)
Held : An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person.
“What does seem clear is that if you act in a way that is considered provocative, you can expect more police attention and perhaps less leeway from the courts.”
Or, to be more blunt, do not ever behave like Leonard Embody.
“Never go full Leonard”
Nice! I’m going to remember that.
It’s a seldom spoken fact that very few people anywhere believe you have a right to be obnoxious. If you’re going to make a point, make sure the average ordinary person will see you as a reasonable person standing up for your rights, not some guy being obnoxious because they’re a troll.
+100
Except that obnoxiousness is not violating any law, and most certainly not violating anyone’s rights.
Rights should not be subject to anyone’s definition of reasonableness. Insisting on such an interpretation is not only contrary to the founders intent but is social fascism.
Except rights are defined by society. The idea of ‘natural rights’ is utterly meaningless unless and until you are willing to die for them (and we don’t see that often as much as we hear people trumpet their ‘natural rights’).
So as long as you live within society you can’t be an island.
There is a gray area where obnoxiousness morphs into provocative and even threatening behavour. A person screaming vague stuff about his/her perceived injustices against him/her needing to be delt with, may seem like harmless ranting to some and like threats of violence to other people. I have come across people standing and screaming and ranting about why they were so angry, that made me uncomfortable enough to move away from them. No, I didn’t call the police on them, but I didn’t hang around to see what sort of stupid prize was going to be awarded for stupid behavour, or worse, if some other nitwit provoked the ranter into killing 6 and wounding 15 by ranting back at him/her.
Man its been a while since weve seem him on here or at all for that matter. I wonder what wacky antics hes up to now haha
IIRC, I haven’t read or heard anything about his activities since SCOTUS declined to hear his case in April of 2014. Has he posted since that time here on TTAG or anywhere else?
http://blog.californiarighttocarry.org/?page_id=1673
ETA: Here is an interesting side note from last month… http://www.tennessean.com/story/news/crime/2015/05/20/former-police-officer-kicked-subordinate-judicial-diversion/27657149/
“Senators Estes and his colleague reverted to the argument that the prohibition against stopping open carriers merely because they are open carriers is “settled Constitutional law.”
It doesn’t matter, the police do whatever they want and then backfill probable cause and reasonable suspicion justifications anyway. And if that doesn’t hold up in to court, they’ve still arrested and harassed you and they get less than a slap on the first and go out and it gain and again. They were incensed over the amendment because it would have made it far more difficult to do what they are already doing unconstitutionally but getting away with routinely.
Ding ding ding ding ding … we have a winner!!!!!
This very dynamic is evident in the Deffert vs. Moe case. The responding officer makes various claims that are demonstrably impossible in the video evidence. (e.g. that Moe could hear Deffert singing when Deffert was facing away, Deffert was over 100 yards away, and Moe was in his patrol car with the windows closed — an obvious impossibility.) Nevertheless, officer Moe’s claims are gospel because he is on the payroll of the ruling class.
Take a few minutes to speak with your local sheriff or any other LEO. Ask them the first thing they look for when they see someone out of uniform carrying a firearm openly. They look for the “badge” directly in from of the holster on the person’s belt, the typical fashion for plain clothes LEO’s to carry. An easy and inexpensive solution to getting stopped and asked for your CHL is to display it on a belt clip in front of your holster. Every LEO in Texas knows what a CHL looks like and most will look at it briefly and wave you on without second thought. A typical belt clip ID holder cost about $13 online.
Yes, I would prefer constitutional carry and the ultimate freedom that comes with it. We may get there someday but for now, let’s celebrate the end to 150 years of severely restricted 2A rights in Texas and call this a “win”.
Display your CHL on your belt? Are you serious? Wow.
So what’s next. Another Star of David? SMDH
If that’s true then it doesn’t matter whether that amendment stayed or went.
This as much as anything is why I come to TTAG. The reviews and stuff are fine but this is gun truth that can keep you out of Texas jail. In the future, I would be very interested in similar presentations for the other states as well.
Exactly. This is a clear and valuable explanation of current law and precedent, with reasonable yet minimal speculation as to how it might play out in real life.
It’s definitely a plus. I would encourage you to consider joining Texas Law Shield, too. If you own a firearm for self defense, you need a post-incident plan, especially a civil and legal defense plan. Additionally, they offer regular updates on firearms law. At the very least, you could visit their website for a wealth of free information.
They also hold annual presentations around the state where you can ask questions. There’s a nominal fee of about $10 for nonmembers, but it’s a bargain with all the free cookies and refreshments you want. (Disclosure: My wife and I are TLS program members, but otherwise are not at all affiliated with the firm.)
Completely agree, they even had someone from TLS at my CHL class for ease of signing up. Very glad I got it, for the peace of mind of nothing else and if I ever goto my inlaws in LA they have multi state coverage.
I didn’t know the open-carry ban had been in place so long; 140-plus years of social and governmental inertia takes a lot of effort to change. Good luck, Texas.
TTAG historical factoid: Leonard Embody spent quite a bit of time in the comment section here while his court case was going on. I’m not sure, but I think he got banned; the guy has a real talent for making himself obnoxious.
I sense a new crime coming: OCWB — Open Carrying While Black.
You need a CHL to carry legally. An overwhelming majority of Texas CHL holders are middle-aged or just plain old white guys, like me, for example. There’s a high probability that anyone else carrying doesn’t have the license, and is therefore carrying illegally. Reality often seems racist to some people.
Personally, I don’t plan to carry openly. It just invites trouble from the cops. The only good thing about open carry is that, should my concealed handgun be uncovered for a moment, the cops won’t have grounds to arrest me and revoke my license.
There’s a high probability that anyone else carrying doesn’t have the license, and is therefore carrying illegally.
Mike, you would make a very fine police officer.
That’s not a compliment.
Oh the generalizations 🙂
I am a straight up honkey and I am worried about it just as much as some of the people of color I know who also have CHLs (theres 2 of them so its people!). Ive even talked to people at the range about it, quite a few had similar concerns. I dont personally want to have to deal with LE and the potential sh1t storm that ensues unless I absolutely have to. ABSOLUTELY.
Come Jan. 1, flood Austin with OC.
But when you do, have others record your LE interactions.
I suspect LE will get tired rather quickly of hassling legal OC’ers.
+1 Racism always find a way.
“First, this wasn’t a complete hearing in front of the entire 6th Circuit; it was a three-judge panel. Potentially it could be appealed to the entire Circuit Court “en banc,” where it might be overturned. ”
This is exactly what appears to be happening to the one pro-gun court win in California in a long time: Peruta which would have forced “shall issue’ CHLs instead of the currently widespread “May Issue”. The three judge panel rule “shall issue” and the unit-gun majority of the court was granted “en banc” and will review and very likely overrule the deacons, killing “Shall Issue” in California for good.
Under the fourth amendment? No.
Under the statutory spaghetti bowl created by state legislatures and the courts? Yes. Maybe. Or maybe not.
In the end, the question only gets resolved by the civil rights of law-abiding citizens being violated, and those citizens seeking redress of such grievances, at the expense of tax dollars.
There ya’ go! ( as in, yes, I think you’ve got it).
So now in addition to DWB we have WWOC (walking while open carrying).
O2
If/when the carrying of a firearm is re-normalized, then possessing one that is visible will not warrant “unreasonable searches.” Right now the antis are justifying searches and indeed creating the very debate because we have gotten so far from the understanding of guns being tools of normal life in our culture.
So the only thing we DID confirm today, is that a little common sense goes a long way….right?
It’s already been ruled that driving a car on public roads does not create a reasonable suspicion that the driver may not have a license or insurance. The same should apply to open carriers. However, as you said, it may take a court case to settle the issue.
It would be unwise for law enforcement to harass open carriers. That could lead to putting the amendment back in. Iowa used to be a “may issue” state. Abuse of their discretion by a number of county sheriffs prompted a change to “shall issue.”
So in other words, open carry alone != reasonable suspicion. Open carry + weird behavior (like belting out ‘Hakuna Matata’ or painting the tip of a real firearm orange) = reasonable suspicion.
More accurately, open carry alone + ____________ (responding officer’s contrived additional “observation”/circumstance) == reasonable, articulable suspicion.
The entire “reasonable suspicion” standard in general is one big exercise in dog coitus. Don’t get me started.
This is why it’s reasonable ARTICULABLE suspicion and why general, vague “feelings” of suspicion should not be allowed.
Seeing someone wearing a very large winter coat in 90 degree weather is, at least, an articulable suspicion. One may debate if it is ‘reasonable’ or not in any given case, but at least it is specific.
“He looked funny to me” and it’s many variants should never pass the smell test.
The problem is that so many of these ostensibly “specific, articulable” reasons are either too subjective, too vague, or too easily manufactured. They include such things as “furtive movement”. Avoiding eye contact is one reason, starting at law enforcement is another – apparently there’s a narrow window of suspicionless eye contact time, but they won’t tell us what that is. Being evasive in response to consensual contact is another, which according to at least some courts includes any refusal to consent to a stop or search.
In short, there’s no such thing as “lacking reasonable suspicion”. Police either lack inclination or imagination, but if they have both of those they can find or manufacture reasonable suspicion.
“An officer may ask an Open Carrier to “show me your papers” in a consensual scenario. The key word being “consensual.” The officer may ask to see a Concealed Handgun License, but the citizen does not have to agree to show the permit. In fact, the citizen have to agree to the interaction with the officer. This is why so many “open carry” YouTube videos feature the open carriers saying “am I being detained?” and “am I free to go?”
This is incorrect in Texas, where handguns are concerned. When “open carrier protesters” do this it is because they are carrying long-guns which do not have the a permit requirement and hence no obligation to present ID. This is why permitless, constitutional carry, is superior to permitted open-carry being piggie-backed onto the CHL. Asking a carrier to present his/here permit/ID might be unconstitutional, but it is the law in Texas until somebody fights it and wins.
1) In Texas it is illegal to carry (when not on your own private property) a handgun, concealed or otherwise, without a permit.
2) The Law establishing the CHL in Texas requires the presentation of ID when asked, while carrying a handgun.
3) Open carry of a handgun under the new CHL provisions means that seeing somebody openly carrying a handgun is probable cause for a stop, and subsequently the mandatory presentation of the CHL/ID. If you cannot present the CHL at that time you are subject to arrest for violating the general prohibition of carrying a handgun – carrying the permit is the defense/exception to the violation.
Senator Estes is mistaken.
I believe “duty to inform” was dropped recently.
Duty to inform is pretty much moot. If you are carrying a handgun openly you can be stopped, you can refuse to show your CHL, and you will be arrested. Then at your trial you can present your CHL as a defense, and there is no longer a penalty for having not presented when you were asked.
It is true that you must present your CHL when asked, but that does not relieve the officer of the requirement to have reasonable suspicion to detain you so that he is in a position to ask. At least not as I understand it.
Interesting take, AR. True, the penalty for failing to present your CHL when asked has been removed, but what does that mean for the request itself? Could one argue that the obligation to present endures, such that refusal to present constitutes a refusal to obey an officer’s lawful order? It’s that refusal which could be shoehorned into probable cause for a search and I.D. check.
I don’t know.
I really don’t know either for sure. But again, the question to me is what reason did the officer have to stop you in the first place so he could ask you the question. My take is that Terry controls. If the “must present” law purports to be reason enough to make a criminal stop, then my take is that that law itself violates the 4th. An “administrative” inspection ( as opposed to a criminal investigative stop), like TABC does with liquor licensees, might be a different kettle of fish, but my take on that is that DPS “administers” the CHLs, not the local po-po.
I think you are missing the point. Carrying openly itself is what triggers that reasonable suspicion since the act of carrying a handgun is illegal in Texas by default, where handguns are concerned, when not on your own property. So when a LEO sees you carrying a handgun, he/she has probable cause to detain and question you. If you have a CHL you have a duty to disclose that permit, and doing so is a defense and therefore you are not in violation. Generally this does not come up as your firearm is concealed. But, since the new legislation allowing open-carry of a handgun piggy-backs on the CHL the issue comes up every time you are seen carrying a handgun.
If there was Constitutional open-carry, there would be no probable cause to stop anyone open-carrying a handgun as the default position of carrying openly would be legal.
Put more simply. If you are carrying a concealed hand-gun an officer will need probable cause to stop you. If you are carrying a hand-gun openly, you have just given the officer the probable cause.
If it wasn’t illegal by default to carry a handgun it wouldn’t be an issue. That’s what needs to change.
No, not missing the point. The point is there is nothing in the act of carrying a gun that says you may not be licensed. It does not implicate an offense by itself.
Put more simply, under the 4th Amendment you are not a criminal by “default”. Even if a cop sees you carrying a gun, he will have to have some articulable fact to indicate you are not licensed (or are committing some other unrelated offense) before he can stop you to find out whether you have a license or not.
I didn’t say you were a criminal by default. I am saying that the carrying of a handgun in Texas, when not on your property, is a crime, by default. Therefore, when you open carry a handgun in Texas anywhere but on your own property, you appear to be committing a crime – that gives a LEO the probable cause he needs to detain you. Your 4th Amendment rights are not being violated….your 2nd Amendment rights are!
That is only the case when your hand-gun is concealed, as the officer, not being aware of your firearm would need a real reason. If your hand-gun is being openly carried, that becomes the reason for the stop. That’s precisely why the Dutton amendment was need – it would have effectively mimicked Constitutional carry. Without it you are dangling probable cause from your belt (or shoulder) for any LEO with a bug up his ass to hassle you at a whim.
But driving “is a crime, by default”, unless you have a licence, so now cops can stop anyone who is driving? How about if you are on private property. That’s a “is a crime, by default” unless you are the owner or have been invited, time to check your ID.
No, because of the SCOTUS Prouse decision. However, licensed firearm carry is not ubiquitous and carriers will be stopped and the courts will uphold it.
I need to do a refresher on the law but I know the penalty for failing to inform was reduced to nothing. It was at least in part to address the imbalance created after we got unlicensed car carry in 2007 where one is not required to inform.
Of course I am referring to the carry of handguns. I had a rifle and shotgun in my truck in high school.
The penalty for failing to show the CHL was reduced, but it won’t stop you from being arrested for illegally carrying a hand-gun. It just means that when you go to trial, you can present your CHL as a defense.
No, you do not have to prove you have a CHL. The cops have to prove you do not have one. having a HL is not an affirmative defense. It is a non-applicability provision that the state has to get by to convict you.
@ AR — This is the relevant law in Texas.
PC §46.02. UNLAWFUL CARRYING WEAPONS
. (a) A person commits an
offense if the person intentionally, knowingly, or recklessly carries on or about his
or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned
by the person or under the person’s control.
GC §411.205. REQUIREMENT TO DISPLAY LICENSE
. If a license holder is carrying a handgun on or about the license holder’s person when a magistrate or
a peace officer demands that the license holder display identification, the license
holder shall display both the license holder’s driver’s license or identification
certificate issued by the department and the license holder’s handgun license.
These two portions of the law, mean that if you are seen with a handgun (OCing), there is probable cause to detain you for unlawfully carrying a weapon, at which point your permit and ID will be demanded of you, and you are obligated to show it (since you have a handgun on you). If you cannot or will not present the ID/CHL, then you will be arrested for, again, the unlawful carry of a weapon. I’m not making this shit up.
@Bdub,
Just because carry is a crime and having the license is an affirmative defense, does not automatically mean that they can stop you with a license. It may in Texas, but I don’t think they can, though they may try until it is explicitly dealt with. Until a few weeks ago, have a license here in Florida was an affirmative defense to the crime of carrying concealed, but cops still couldn’t stop you for no reason and ask for the license. That result came from a Fl supreme court case a few years back.
Sure they can. What’s going to stop them? Are you telling me that you actually believe that cops won’t stop OCers to see if they have a license?
It’ll take a lawsuit or two, or maybe a few expensive conviction reversals, before they start to have a little discretion about stopping folks. And of course, some will make up stuff to justify the stop as a righteous Terry stop when they can.
I am only talking about the legal situation in Texas specifically.
+1
If your feeling brave, people need to start going up to cops and asking for ID. If they don’t give it, walk away and then call 911 and tell them there is a person who is impersonating a police officer at such and and such location. Be sure to mention that they are armed. Record everything, use disposable cell phones.
That is actually not a bad idea. Hold the other side to their own standards.
It appears to me that in the cases where the stop was upheld, the judges found (or at least made a pretense of finding) that there was something about the defendant other than the mere act of carrying a gun that contributed to the required “reasonable suspicion” to uphold the stop (lurking in front of a church and singing arcane lyrics; painting the gun tip red). There is nothing in the mere act of carrying a gun that signals to the officer that you do not have a license or that you are a prohibited person. There has to be something else, whether related to the gun or not, that can be articulated and amounts to reasonable suspicion that you are committing an offense. That is pure Terry.
Gives me a question to ask my LEO (county) friends, since this state has been open carry no permit for quite some time. Would they talk to someone based on how they look? I said county because I don’t know any local P.D. & I was recently followed & pulled over by P.D. based on a quick look at me at a stop sign. I thought it odd because most of my life I’ve been accused of being a cop based on my looks.
I know it has no bearing on Texas, but In PA, both case law and statutory law prevents police from making an arrest or demanding ID just because someone is openly carrying a firearm. Of course, here you don’t need a permit to open carry. Except in Philly, which is the one place cops CAN stop you and ask for license and ID for OC. The Philly special case seems parallel to the situation in TX come Jan 1.
I periodically hear leftist colleagues bashing Texas as the wild west. I love seeing their faces after I explain that PA gun laws are generally less restrictive.
Louisiana case law establishes the same thing. That of course doesn’t keep ignorant La. local cops from stopping someone before a supervisor has to be called to back them off.
Exactly.
Old BEn, I think you are wrong on the Philly part. The license is required in Philly for Open Carry, but the same basic principle applies, you can’t be compelled to show it without “reasonable suspicion”.
See Viper’s lawsuit against the city and the resulting changes.
Pennsylvania has preemption.
Sony makes a damn fine audio recorder.
Yep. 🙂
The Texas legislature will convene again in two years, correct? That is a nice time frame for pro-gun groups in Texas to begin the campaign to add the Dutton/Huffines Amendment to Texas law.
Go for constitutional carry. Don’t waste two years just to get thrown another bone.
Agreed. Open carry of a handgun, or firearm of any kind, should be legal and protected by the 2nd Amendment. Right now, in Texas, it is not, and that needs to change. You cannot get your rights back by adding legislation onto existing, rights violating, legislation. You have to get rid of existing legislation to do that.
So right and so wrong at the same time.
Regardless of what the law actually says, or people think it says, the Austin PD will likely harass people because: 1) The benefit of reasonable mistakes of law (and qualified immunity) go to the PD until it’s clarified in the 5th circuit; 2) The Austin PD is not playing with their own money, it’s all on the taxpayer dime; 3) Lawyers love test cases.
99% chance there will be a test case. It won’t need to go all the way to SCT, it just needs to go as far as the 5th circuit for TX.
I have a few issues with what is written above.
I call shenanigans. Texas law enforcement WILL stop OCers to check for licenses. There’s nothing stopping them from doing so unless the law is changed or the courts rule otherwise. Prouse can’t be used as guidance here, and neither can the others. In Michigan, OC is legal in some circumstances without a license, but a license is required in other circumstances (OC in vehicle, OC in a CC PFZ, OC where there is a liquor license). Any of those places Michigan LEOs can and have demanded proof of CPL. You can deny, but they can arrest and you will be forced to produce your CPL in court to prove your exemption to the law. The same thing will happen in Texas.
Second of all…
Wrong. Officer Moe could NOT hear what Deffert was saying (or singing). In his own police report he stated that it looked like Deffert was simply talking to himself. Instead of singing, he could have been using a bluetooth device talking on his cell phone, right? (Yeah, Moe said in his report that Deffert didn’t have a cell phone, although he actually did. In any event, Moe couldn’t have known that one way or another from a distance behind Deffert). Yet according to the judge who refused to let the case go to trial that Officer Moe had reason to believe Deffert was acting crazy. If Deffert appeals this, look for it to be overturned.
Missed my edit time. First of all, Deffert was not hanging around a church. He was walking home (after breakfast at a local restaurant, I think) and it just so happened that he passed a church on the opposite side of the street. In any event, he was walking from point A to point B, not hanging around a church in camos all tacticooled out.
The judge’s ruling was fabricated out of thin air based on stuff that a) wasn’t true, b) wasn’t in the police report, and c) wasn’t law. And in this case he was not in any place or zone that required a carry license (unlike Texas).
I am not necessarily saying you are wrong but right now if a CHL holder does not inform nothing happens. Not sure what the penalty is in those place in Michigan but the quick fix here was to remove the penalty completely. I know from experience that you might get berated by a cop that doesn’t know the law or you might not get treated as nicely if you fail to inform but I and others I know have never been arrested for failure to inform.
J. Zoss, what can happen in Texas is that the cop or sheriff arrests the OCer for carrying a firearm without a license, same as concealing. Then the gun carrier will have to show he is licensed, amirite?
What happens now if a cop sees that a CCer has a gun. (Say he accidentally exposes it). He can demand to see his license or arrest him for carrying without a license to carry, right?
I expect the first couple of times the officers actually arrest a bona fide licensee, the whole show will slam to a stop. Having a license is not an affirmative defense to a UCW charge in Texas. IIRC, it is a non-applicability situation, the prohibition against carrying a handgun does not apply to a licensee. It is basically the state’s obligation to make sure you are not a licensee before they can charge you with the offense.
I went digging into the archives, too, and came up with this citation. It’s an older one, dating back to December 15th, 1791, but I believe itbstil provides the relevant and overriding legal standard:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
That old thing? SCOTUS has already told us that it doesn’t mean what we think it means. Listening to some POTG, it seems like they agree with the Court. 🙁
“Settled law”, I’ll have to add that to my list of oxymorons. The law is only as settled as society is stable. Many laws once thought of as settled were later overturned after great tumult in society.
Northrup vs. Toledo Police Dept is controlling law in the 6th Circuit, and it says open carry is not enough to stop someone.
Deffert vs. Moe. is a very recent District Court (not Appellate Court, like Northrup) case that was decided by a hard-left liberal judge. It is in direct conflict with Northrup and will likely be over turned.
Embody vs. Ward, which pre-dates Northrup, upheld a police stop because the court found that the officer had reasonable suspicion that the gun itself was not legal (while the officer may have been ultimately wrong, the law doesn’t require perfection). This would not apply to a “normal” handgun.
None of the above matters in TX, however. Aside from the fact that they are 6th Circuit cases (vs. 5th Circuit, which covers TX), TX requires open carriers to have a permit, and the states in the above 6th Circuit cases do not. Moreover, TX law states:
“GC §411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder’s person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license or identification certificate issued by the department and the license holder’s handgun license.”
Therefore, if an officer sees you open carrying a handgun, he can walk up to you, initiate a casual encounter, and during that encounter, demand to see your papers. Until this requirement is repealed, open carriers can be effectively stopped (I mean that in the lay sense) by the police.
Yhatzee! I mean, Bingo!
“peace officer demands that the license holder display identification”
Not your CHL, your identification. The peace officer has to have a valid reason to ask for your identification and then you must show your ID and your CHL. However, as has already been stated in comments above, there is no longer a penalty for failure to present your CHL. That section of law used to have the following appended:
“A person commits an offense if the person fails or refuses to display the license and identification as required by Subsection (a) after previously having had the person’s license suspended for a violation of that subsection. An offense under this subsection is a Class B misdemeanor.”
You are on to it. Cops can’t just stop you willy-nilly just to ask you for ID (whereupon you must also show your CHL). They have to have a reason to stop you before they can ask for ID. Some folks are getting the cart (asking for ID) before the horse (making a stop so as to be in a legal position to ask) here.
Considering that we’re all subject to several million pages of laws, cops can always find a reason to stop whomever they please and ask for ID. If you’re ill treated because you refuse to present ID, you can always sue, if you survive. Whether you survive or not, the cops won’t suffer any consequences. If a cop asks to see my CHL, I’ll show it to him rather than be maced, tasered, slammed to the pavement, or shot. Of course, any or all of these things might occur regardless, but it seems stupid to go out of one’s way to invite them.
@Mike J: If it becomes a problem in Texas, it will take people willing to endure those possibilities to get the situation corrected. If you don’t want to do it, rest assured some Texans will be willing to lay their lives on the line for Liberty. We had brave souls here in Ohio that did it and I have little doubt that there are Texans just as courageous.
So there’s no penalty for failure to produce your license, but what’s to stop a cop from arresting you for unlawful carry (i.e., you were unlicensed)?
Nothing, since unlicensed carry is a crime, by not showing you CHL you appear to have committed it – presto chango!, you get arrested. What people don’t seem to be grasping is that in Texas, if you are visibly packing a hand-gun, you have the appearance of commuting that crime, which gives probable cause for the stop.
If the police didn’t want to harass open carriers, they would not have reacted this way to the proposed amendment.
Good point. They were adamant about being able to demand your license.
If this was the way it had to be, then CCP’s holders should be able to expose a number(small badge),or similar set up, and cops, could do a call in without interaction,RUN the number.
As long as cops are hassling legal open carriers on public streets, they’re not at people’s homes shooting their dogs. So I think that stopping law abiding folks on the street is a net gain. Do it for the dogs!
Meanwhile, once cops get tired of showing off their macho by bracing legal open carriers, they’ll stop bracing, but we won’t stop carrying. That’s a win. And Art Avocado, who is named after another Mexican fruit, can kiss all of our nether regions.
I know what I’ll be doing on January 1, 2016 in down town Austin.
Solution to issue: Use the 2nd amendment as intended, shoot ANYONE that tries to forceably take away your rights.
I don’t understand why you need to have a CONSEALED CARRY lisence in order to OPEN CARRY.
I live in Alabama.
We are open carry with no liscenes friendly.
However, I’ve been stopped three times. Twice and only after they saw my CCW permit they made me get out of my car, searched my car, removed my pistol from my now unoccuied car once “for their safety” and the other time “so we can run the serial numbers to make sure it’s not stolen”
I told them “if I was carrying a stolen pistol I wouldn’t have bothered paying for the CCW”
The third time (road block) the officer asked if I had any weapons in my car. I said yes my is pistol is in the console. He asked if I could get to my papers without opening my console. I did and gave him my permit.
He ran my Id “to check to see if I was wanted for anything” then said have a safe night and off I went.
So in my experience… 2/3 of the time, if a cop sees you have a CCW permit you will be searched and disarmed, but as long as your all legal, you eventually get to go free.
But if you open carry, the most they will do is run the SN to check if it’s reported stolen.
Isn’t it weird that it seems you are better off to open carry with no permit than hand them a CCW?
Doesn’t matter if you agree with it or not, that’s what’s going to happen in Alabama.
You can make things as easy or hard on yourself from there as you want.. If you choose the hard path, or file a complaint on the officer, expect to be pulled over often by various officers for various things like drifting over the yellow line, fit the discreption of someone we’re looking for, going 42 in a 40 zone etc.
As long as it’s not the same officer every time, good luck trying to pove harassment. I once heard a judge say “is 42 in a 40 not over the speed limit?”
You will run out of money trying to defend yourself or sue for harassment way before you ever have a chance to go to court to do anything that will challenge or change law.
On a better note… When I had do my paperwork for the BS Tax Stamp ($200 bribe) for a can, the sheriff wasn’t in the office, but I was able to leave them with the clerk and she called me once the Sheriff got back and signed them.
Alabama is a very gun-friendy state. Our sheriff in a town hall meeting told the crowd “you don’t have to drag them back inside as far as I’m concerned” (yes that means what it implys) 🙂
We are very gun friendy here…
But unless you have plenty of time or money to kill, if you feel wronged by the cops, it’s better to comply and lawyer up than be an ass and spend the night in jail. If you are an ass to the cops, you will also most likely have been “resisting arrest” in the elevator ride to your cell.
(Only place with no cameras)
When I asked one of the clerks why that 6foot area has the highest rate of “resisting arrest” in the whole building? All I got in responce was a grin.
Moral of the story is..
If you get stopped, show your Id, insurance info, CCW(if asked)
And always take the stairs…
But if you open carry, the most they will do is run the SN to check if it’s reported stolen.
What probable cause does the officer use for that intrusion?!?! Unless it is codified in state law somewhere, he would have to have more to go on than just because he was curious. I read your list of fears for not complying but that needs to stop. Jeez, I can’t believe y’all put up with that. Somebody needs to refuse and then sue. If you don’t, that nonsense will continue and probably get worse as time goes by.
When I asked one of the clerks why that 6foot area has the highest rate of “resisting arrest” in the whole building? All I got in responce was a grin.
Moral of the story is..
The moral of the story is that you get the government that you deserve. Fight for your damn rights! FFS
Never allow a cop to search your car, without PROBABLE cause.
You gave up a lot of rights doing so.
So defacto open carry in Texas is just political “freedom” theater. The city states of Austin, Houston and San Antonio and their police unions neutered this law. 3 percent of our state have CC permits… Gents I’ve seriously asked my lawyer to look into suing the state for denying me my right’s to open carry. Yes it will cost some money but with many states already having open carry and many more going to constitutional carry I* would hope the courts would rule in our favor. TX constitution say something to the effect that the state can regulate the wearing of open with an eye to reduce crime. Does that mean they can deny you that right or charge a defacto poll tax?? Any thoughts would be appreciated.
I think that would cost you a lot of money and you’d be unlikely to win. I think we’re going the right direction and someday the legislation will influence future court rulings, but for now the laws are far too biased against what you suggest.
That is, I don’t see many gains yet to be made in court beyond shall issue for concealed carry. There is too much precedent from the past 100 years or so of the NRA’s existence (just had to throw that in there) where the courts have ruled that “shall not infringe” means that infringing is encouraged.
The next big advances, in my opinion, will have to come in the form of repealing the restrictions on silencers/suppressors and short barreled rifles and sawed off shotguns. That will precede the complete repeal of the NFA and the GCA. The courts will not do that, only legislation will do that, and legislatures will only act if the people show that they demand it in exchange for their votes.
Until then, we need to keep driving the culture of gun ownership and open and concealed carry.
To return to the days of freedom will take time. We’ve had a century of relinquishing freedoms, not just for firearms but for everything from business to schools and medicines and everything else, and we won’t regain our freedom all at once. We need to push and push and push and someday the pushing will pay off.
There’s a learning curve for each generation and government has momentum. If you rely on incrementalism to restore the exercise of rights, you will only get a diluted exercise of rights over generations. No, each generation has its chance to restore government respect for individual rights. We got here because that first generation didn’t do what was necessary. Likewise for the generation after that and so on. You can burn the cabin down but you can’t burn it back into a cabin. Government can play the long game, individuals cannot. Each generation is called to push for MAXIMUM exercise of Liberty, not just a little bit. If we settle for a little bit, future generations will lose.
I’m not arguing for incrementalism. I’m saying that the legislatures are where we need to make big strides because the courts will not do much more. There is still work to be done in the courts, such as perhaps getting “shall issue” CCL, and possibly even federal open carry (though that’s probably too far), but they have signaled that they will support restricting rights constrained by the GCA and the NFA. To get those rights back has to go through the federal congress.
The NRA has shown no inclination to push that. We need some other lobbying group to speak for us in this regard and then maybe the NRA might join in at the last minute and try to claim the credit.
Craig, you can’t just sue because you don’t like a law. What you’ll have to do is get yourself arrested for illegal carry and appeal your conviction. If you’ve got powerful political connections, perhaps you can do that without doing any jail time. If you live in one of the rural counties of Texas, perhaps your county’s jail is like the one on the old Andy Griffith Show, and you’ll just sit around playing checkers with Barney. If you live in Harris, Tarrant, Bexar, or one of the other urban counties, you might ask yourself whether anything is worth confinement in your county’s jail.
@Mike J: One doesn’t have to be convicted. An arrest or clearly being detained is all it takes to give standing. It’s not some impossible task. People have done it here in Ohio and in other states.
If you live in Harris, Tarrant, Bexar, or one of the other urban counties, you might ask yourself whether anything is worth confinement in your county’s jail.
You sell your freedom so cheaply. Sitting in county isn’t really the end of the world. Many people survive it just fine. IMHO, sitting in jail is worth it to defend Liberty.
The accused is almost always alone in the initial proceeding, Organization like NRA can file amicus briefs in the appellate levels, but that does help at trial, and it is at trial were the fact finding is happening. To best shape the appellate outcome, some attention to the fact finding at trial is needed. I think the answer is crowd funding. Get a fund raising effort started. The crowd fund is defined to provide assistance with legal defence in a particular circumstance. When the arrest or detention occurs, the crowd fund buys the services of the attorney. This maximizes the likelihood you will get the precedent you want. As any of these video camera cases has shown us, police can shape the facts that come to court if they anticipate they have a fight on their hands. The problem with the argument presented in this article is that these cases went forward without any evidence from police that suggested they were investigating a crime and had reasonable grounds. If the police had been more savy they would chose an open carrier who is near a scene of crime or has some superficial resemblance to someone they have a warrant for. Somebody goes to jail for doing a walkaway from the cops. The intimidating message goes out. Open carriers start to show licences.
Skyler, you don’t think that the overwhelming number of states including several very Marxist/socialists ones that have unlicensed open carry already sets the precedence that is unconstitutional to require a license to do so? Secondly, the very odd “dual law” that’s says we can carry a rifle but not a handgun? IMHO that law could be attacked from 2 different directions. A. they are denying us the right to carry a specific style of firearm based on a reconstruction fear. B. That it’s racist as it was designed to provide a poll tax to black Texans in order to exercise a right. Not to mention heller.
I’m just not as hopeful as you seem to be that the courts will do much more. They’ve made it clear, especially in Heller that they think the government has every reason to limit machine guns and other weapons without even saying why. They will not do much more to overturn the GCA and the NFA, and we can only expect that the legislatures of the states and the feds will eventually repeal those laws. Once they start doing that, the courts are more likely to follow suit and recognize the rights as they should be recognized.
I don’t know about that. Although Texas is a little odd in that in has unlicensed open carry of long guns, there might still be some room to work through the court because y’all still can’t open carry a handgun without a concealed handgun license. That means the right to bear a handgun openly is blocked while a license is required to conceal one. It’s all privilege and no exercise of the right. IMHO, there is still a viable fight to take to the court. This link was posted in comments on another TTAG article. You might want to give it a read. http://www.yalelawjournal.org/note/open-carry-for-all-heller-and-our-nineteenth-century-second-amendment
I was pretty clear in saying that would likely happen. I said anything more than that is not likely to come from the courts.
@Skyler: I didn’t catch that. Sorry. 🙂
Yeah we have open carry of long guns, BUT you are asking for a world of crap when you do it.( you will be swarmed)
Most cops here are clueless about the laws.
The MSM and the state does not ever DO PSA’s about the changes coming, so the whiney butts call John Law.
I saw one dude older Iraq vet 3 tours with an AR clone, slung with his 14yr old son son walking down the sidewalk,minding their own business.
Three squad cars show, and ask him what he;s doing(they SHOULD know he is 100% legal), CLUELESS.
They said they had a call in someone was afraid(that’s all it took.)
He explained to them he was legal, and had not un-slung the weapon.
No matter,cuffed him,took him in and left his 12 yr old son of the side of the road,
I am sure he got off, but if he was smart he would have sued them for unlawful arrest,and child endangerment.
It won’t matter until a young black guy gets harassed. Then the left and their pravda media will pounce. Until then, no one cares of us bitter clingers get harassed, abused, arrested, or killed for exercising the human rights the left doesn’t like. In fact, they’ll encourage it.
This.
John Crawford was killed and the progressive morons who were protesting side by side with us went on to push sponsorship of a bill amounting to BB gun control. My Romanian friend was the first lone protester. He protested in the cold all alone for weeks until the rest of us noticed (including the progressives). I think they decided they were missing out on a good crisis because it was POTG who were actually protesting against his killing at first.
The progressives won’t notice for the right reasons. Since it involves the right to bear arms, all they will do is notice if they can further their own agenda and that is all that they will work towards. Progressives don’t actually give a damn about minorities. They use minority issues for their own ends.
OC with a license… The license part is a big problem. In Ohio it goes a little something like this: We often carry “sterile” when we anticipate some flak. That means no concealed handguns and no identification. Since we are not operating a motor vehicle (requires a license in Ohio) and we are not concealing a handgun (requires a license in Ohio), we do not have to notify. We do not have to provide identification unless the officer has reasonable suspicion of a crime. Since the officer has no reasonable suspicion of a crime to articulate later in court, the encounter is consensual and we walk away. Unfortunately, Texas has passed OC with a concealed handgun license legislation which is the exercise of a privilege. Government privileges often come with agents of government verifying the individual’s permission to exercise those privileges. It’s wrong and it sucks.
Texas was ruled by democrats almost exclusively until very recently. We are culturally much further ahead than our laws reflect. We’re getting there. In the next legislative session in two years, I expect a lot more to happen.
This article makes no sense. ALL the sample cases posted determined officers CAN NOT detain someone just because they are open carrying a firearm absent “reasonable suspicion”.
ALL of them.
On the first few cases the court decided there was no “reasonable suspicion” so stop was no good, on the last two the court decided there was “reasonable suspicion” so the stop was good.
In ALL cases the need for “reasonable suspicion” was established. Seems pretty clear to me.
What I don’t get is how TX ever got the reputation it has for being gun friendly.
The gun is displayed but not the permit. Therefore no simple inspection from a distance can settle the issue: is this person actually permitted to open carry, or are they impersonating a licenced person. So the consensual question is asked. Refusing to answer is not reason to detain but it can alter police behaviour, indeed can alter the behaviour of anyone witnessing the refusal to answer. So, lets we assume that a person who is making his fellow pedestrians nervous by openly carrying a gun, makes them even more nervous by refusing to answer a reasonable question, The entire encounter may end up changing how others act. Some guy shepherding his children across the street decides to continue on a different route to get away from the crazy. Nearby motorists decide not to wait for the light to change to get out of the danger zone. You can refuse to answer the question, and thats your right. the police can choose to ask the question with a bull horn, and then announce your refusal to answer using the same amplification. The second amendment doesnt forbid people reacting to your unreasonable behaviour just because it is lawful.
I do not open carry, because I do not want to be considered a threat to a thug. He will surely try to take me out first.
If he does not see my weapon, I have all the advantage. And I certainly don’t want to get in a pissing contest
with an officer, like some these “Drug Store Lawyers”, who open carry just to try to pull the LEO’s chain.
A trick like that could get hairy.
Bottom line, don’t let anybody know you are carrying, until the thug goes postal, then you can yell “Surprise”!
I have read a whole lot of comments on a vast array of different subjects. The subject matter here and the comments are thought provoking and valuable. This is such a touchy subject and yet the vast majority of commenters provided reasonable and logical comments. I got to this site because I was looking for information on police authority to stop an open carrier without any reasonable suspicion or probable cause. I can’t say that I have a definitive answer but I do believe I know where to turn to next.
Tonite while entering my local Wal-Mart, A Fort Bend County Sheriff Deputy stop me from continuing into the store and asked for my CHL. I asked him if I had done something to alarm him to ask. He told me that it did not matter and he had the authority to ask. And after a somewhat discussion about the legality of his action and eventually relented and presented my CHL. I plan to file a complaint on the officer with Wal-Mart and FBCSO and wanted to get some background info to help file the complaints.
Thanks.
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