Search found 5 matches

by jmra
Sun Jun 07, 2015 5:04 pm
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 6676

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.
I do wish we could vote that idiot off the island.
by jmra
Sun Jun 07, 2015 9:38 am
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 6676

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

txpilot wrote:
Vol Texan wrote: We need to remember that the general law is that it is illegal to drive a car if you are off your own property.

There - that also seems to be true. Does that grant the LEO the right to stop us for no reason whatsoever, other than to see if we have a license?

Nah, I think not.
Unfortunately, if you look at the transportation code (Section 521.025(b)) it states:
Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND;
CRIMINAL PENALTY. (a) A person required to hold a license under
Section 521.021 shall:
(1) have in the person's possession while operating a motor
vehicle the class of driver's license appropriate for the type of
vehicle operated; and
(2) display the license on the demand of a magistrate,
court officer, or peace officer.
(b) A peace officer may stop and detain a person operating a
motor vehicle to determine if the person has a driver's license as
required by this section.
This has been discussed repeatedly on the forum - the courts have determined that the mere requirement of a license is not enough to detain. So this section of the code is meaningless. The law is full of regulations that are no longer applicable, this is one of them.
by jmra
Sun Jun 07, 2015 6:35 am
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 6676

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

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 would argue that since thugs do not typically open carry that the odds after Dec 31 that an individual OCing does not have a CHL would be vey lopsided - not a bet I'd ever take. Using this logic nullifies the argument that OC is RS. Simply put, since there is no history of or any reason to suspect in the future that thugs will OC, the norm will be that a person OCing has a CHL, not the exception which is the argument above.
by jmra
Sat Jun 06, 2015 8:12 pm
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 6676

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

Tracker wrote:Yeah, I saw those debates, too, where the reps said LEOs needed more than someone simply OCing. But I could see some departments using 46.02 to justify the stop. It could change me down as an opinion from state justice dept
Which would guarantee changes by the legislature in 2017.
Cops don't like wasting their time anymore than anyone else. Once they figure out that bad guys don't OC they'll back off. Of course people calling their reps complaining about police harassment will get them to back down also assuming it ever gets to that point.
by jmra
Sat Jun 06, 2015 5:28 pm
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 6676

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

I don't believe he is right. It was stated numerous times in debate that the Dutton/Hufines amendment was just a reinforcement of existing law and that an officer demanding to see a license based solely on the OC of a handgun and would be a violation of the 4th amendment.
[pre-paid legal] does not have the best record of providing reliable information.

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