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

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

#1

Post by Tracker » Sat Jun 06, 2015 4:23 pm

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If what he's saying about section 46.02 is right then LEO could always demand ID from groups like OCT, yes/no?

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

#2

Post by jmra » Sat Jun 06, 2015 5:28 pm

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

#3

Post by PBratton » Sat Jun 06, 2015 6:24 pm

Yeah, don't think he did his homework...
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Re: U.S. Law Shield - Gun Law Center: Texas Open Carry is Im

#4

Post by Tracker » Sat Jun 06, 2015 7:52 pm

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

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

#5

Post by jmra » Sat Jun 06, 2015 8:12 pm

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

#6

Post by gljjt » Sat Jun 06, 2015 10:09 pm

He also stated you can conceal carry w/o license in a motor vehicle. He left out the own or control part of that. A non-driver, non-owner (or I presume non-renter) cannot carry a concealed handgun in a motor vehicle.


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

#7

Post by nlyric » Sat Jun 06, 2015 11:22 pm

Tracker wrote:

If what he's saying about section 46.02 is right then LEO could always demand ID from groups like OCT, yes/no?
I called [pre-paid legal] and talked to a lawyer and that is their view. They can stop, detain, and you will be required to produce chl/id. Because it is illigal in Tx to carry a handgun. We are simply the exceptions.
Long guns not the same as there is no law. So no papers please/ no I'd/ no detain. Unless of course there is RAS of a crime. Or concensual of course.
I think their logic is that the fact that only 3% of Texans have been granted exceptions, that it could be reasonable to assume a crime by the mere sight of a handgun. They seemed sure there will be law suits, but not so sure of the outcome in the 5th circuit. As their are some liberal judges. Not all but some.
This is the way I understood my conversation with them.


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

#8

Post by srothstein » Sat Jun 06, 2015 11:56 pm

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

#9

Post by Vol Texan » Sun Jun 07, 2015 2:59 am

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 affirmatuive 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.
The red text is correct. Let's change a few words to see if it changes our view:

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

#10

Post by TexasCajun » Sun Jun 07, 2015 5:03 am

Vol Texan 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 affirmatuive 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.
The red text is correct. Let's change a few words to see if it changes our view:

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.
Is that actually the case? Is it in fact illegal to drive a car in Texas, with the defense to prosecution being the presence of a valid driver's license?
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Re: U.S. Law Shield - Gun Law Center: Texas Open Carry is Im

#11

Post by b322da » Sun Jun 07, 2015 6:04 am

I suspect that looking at the statutory language together with its legislative history almost guarantees that this issue will eventually be addressed by the judicial system, state and/or federal, unless it is first fixed by the legislature. A classic issue of statutory construction has been set up by the legislature -- most first year law students probably have just such a question on an early law exam.

In the conflicting opinions expressed here by commentators we see the essence of the typical law student's answers to the question. Certain commentators express their opinion as to which way it would go in the judicial system; others are outright certain that the answer is clear.

While I have absolutely no relationship with Law Shield, I can understand why a lawyer would avoid giving an "absolutely certain" opinion on a question like this when there is a chance, even a slim chance, that, if his opinion proves to be wrong, and someone relies on that opinion in governing his conduct, that person might suffer badly.

As it stands, waiting for the question to be decided "absolutely certain" by either the legislature or the judiciary, one might be wise to think about it, decide what his own opinion is, and, depending upon how certain he is of that opinion, govern his own conduct.

Jim

EDIT: I am sure you have noted that I do not express my opinion as to the ultimate issue, if in fact I have one, and I do not intend to. Take it up with your own lawyer if you wish, rely on advice rendered by someone on this forum, or rely on free advice by a lawyer on the internet if you wish. In any event, the decision about your own conduct is yours alone.
Last edited by b322da on Sun Jun 07, 2015 9:03 am, edited 1 time in total.

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

#12

Post by jmra » Sun Jun 07, 2015 6:35 am

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

#13

Post by Tracker » Sun Jun 07, 2015 7:47 am

So in [pre-paid legal]'s legal opinion you can be detained if you are carrying sig but not if the gun is a pre 1899 BP replica? Interesting.

30.06 and 30.07 doesn't apply Per 1899s??


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

#14

Post by txpilot » Sun Jun 07, 2015 9:15 am

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.

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

#15

Post by jmra » Sun Jun 07, 2015 9:38 am

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.
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