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by G.A. Heath
Sun Jun 07, 2015 5:15 pm
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 7782

Re: U.S. Law Shield - Gun Law Center: Texas Open Carry is Im

Charles L. Cotton wrote:
srothstein wrote:I think he has an interesting point and might be right. I don't believe he is right, but he might be. We need to remember that the general law is that it is illegal to carry a pistol if you are off your own property. That is PC section 46.02. Section 46.15 says that 46.02 does not apply to a CHL. Normally, I would say this means it is legal and you cannot be accused of violating 46.02. But, and this is an important but, I have a vague recollection of a problem once before with the wording of the law. I remember some court case that said there were only defenses (including affirmative defenses) or exceptions which must be stated as exceptions to the law. The wording "does not apply" does not fit into either of these categories. I hope Charles can remember this case better than I can and can tell us the actual terms and rulings and what it might mean in this debate.

There are old SCOTUS rulings that say a police officer does not have probable cause if the behavior is at least as likely to be legal as illegal. This is important because it might allow a police officer to argue that the behavior is not as likely to be legal. Remember how small a percentage of the population have CHLs. If the meaning of does not apply turns out to be a defense instead of an exception, it would certainly allow officers to claim that the behavior is illegal and only a defense exists. If it turns out to be an exception, an officer might still be able to claim the odds are in favor of illegal behavior based on the percentages. I think the court case would turn out poorly for the officer, but I can see soem of them, especially with certain DAs backing them up, makign the argument.
I don't recall the case either, but you are correct. Only express "exceptions" are exceptions, everything else is a defense to prosecution, unless it expressly an "affirmative defense" to prosecution.

The 4th, 6th and 10th circuit court decisions holding that merely openly carrying a handgun is not reasonable suspicion may or may not have been in states where unlicensed open-carry is legal. That could make a difference. However, the driver's license issue seems to be on point, so it wouldn't be a stretch for a federal court to rule that even in licensed open-carry states, carrying openly alone is not a basis for reasonable suspicion.

All of this is going to be academic if Grisham continues to get publicity arguing with COPs while carrying his AR. The legislature will not be in the mood to amend the statute with that kind of COP-baiting and bad press.

Chas.
Sadly I suspect he thinks he is making a case for something along the lines of the Huffines/Dutton amendment.

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