One problem/issue if licensed OC passes

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Texas1999
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One problem/issue if licensed OC passes

#1

Post by Texas1999 » Mon Feb 16, 2015 3:04 pm

How will LEO know whether a person OC'ing is in fact licensed?

The act of OC'ing, absent any other circumstances, would not give LEOs reasonable suspicion to detain you and investigate whether you have a CHL. This has been an issue in other states, where someone OC'ing is illegally detained and asked to ID himself to make sure he has a license, and/or is not a felon prohibited from possessing a firearm. Such detentions are illegal and unconstitutional, but it doesn't seem to stop LEOs from doing it and harassing law-abiding citizens.

Imagine if you were driving down the road, breaking no laws, and a cop arbitrarily stopped you "just to check and see of you have a valid driver's license." That's an unconstitutional stop.

I foresee this being an issue if "licensed" OC passes.

Thoughts?
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Re: One problem/issue if licensed OC passes

#2

Post by SkipB » Mon Feb 16, 2015 3:08 pm

It ain't against the law for them to ask to see your license. If your open carrying and they ask to see your license they are in their right to do so.
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Re: One problem/issue if licensed OC passes

#3

Post by RoyGBiv » Mon Feb 16, 2015 3:39 pm

SkipB wrote:It ain't against the law for them to ask to see your license. If your open carrying and they ask to see your license they are in their right to do so.
Are you sure about that?

Seems to me that engaging in a legal activity (walking down the street open carrying, assuming SB 17 becomes law) is, by itself, insufficient to rise to probable cause or RAS for a LEO to ask me for ID, or Terry Stop me.

ETA: 4th Circuit decision
http://www.fedagent.com/case-law-update ... of-seizure" onclick="window.open(this.href);return false;
“Third, 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.”
Of course the 4th is not controlling here in TX. Just an example of why you should not be too certain of the above quoted remark.
Last edited by RoyGBiv on Mon Feb 16, 2015 3:45 pm, edited 1 time in total.
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Texas1999
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Re: One problem/issue if licensed OC passes

#4

Post by Texas1999 » Mon Feb 16, 2015 3:43 pm

To stop and detain you and require you to produce a license, the LEO first would need reasonable suspicion to believe you do NOT have a license to OC. They cannot just randomly stop you and demand to see a license, just as LEO cannot randomly stop a vehicle to "check and see" if the driver has a driver's license.

As a side note, I'm a criminal defense lawyer, and I've handled (and won) many motions to suppress evidence based on a lack of reasonable suspicion or probable cause to detain an individual. Not bragging, I'm just saying I'm familiar with the requirements of the Fourth Amendment, and I can already foresee it being a headache for both LEOs and law-abiding citizens if licensed OC passes.
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Re: One problem/issue if licensed OC passes

#5

Post by Keith B » Mon Feb 16, 2015 3:54 pm

Yes, Terry Stops require reasonable suspicion by the officer. However, as we all know it is not hard for an officer claim reasonable suspicion.

That said, it is going to depend a lot the claim of why the stop is made; Man with a gun phone call? Report of a man acting suspicious that, by the way, has a gun on his belt? Supposed report of a suspicious person in the area that fit the OCer's general description?

Bottom line, we all know if an officer wants to detain you, then they have ways of doing it and not even asking for ID. During that time they can usually determine if you are a risk and warrant further investigation or if you are pretty clean and they have no real reason to dig further.
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Re: One problem/issue if licensed OC passes

#6

Post by cb1000rider » Mon Feb 16, 2015 4:03 pm

Texas1999 wrote: The act of OC'ing, absent any other circumstances, would not give LEOs reasonable suspicion to detain you and investigate whether you have a CHL. This has been an issue in other states, where someone OC'ing is illegally detained and asked to ID himself to make sure he has a license, and/or is not a felon prohibited from possessing a firearm. Such detentions are illegal and unconstitutional, but it doesn't seem to stop LEOs from doing it and harassing law-abiding citizens.
You're a lawyer. Can a LEO pull me over while driving to make sure that I don't have an expired drivers license, assuming I've broken no laws? It's exactly the same thing.

This stuff (hopefully) will get harder and harder to pull as more PDs adopt body cameras and it's not so easy to make something up that might cover reasonable suspicion.

Also note that in other OC states, legislation often states explicitly that the mere presence of a firearm does not in and of itself warrant a stop.


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Re: One problem/issue if licensed OC passes

#7

Post by Texas1999 » Mon Feb 16, 2015 4:20 pm

cb1000rider wrote:
Texas1999 wrote: The act of OC'ing, absent any other circumstances, would not give LEOs reasonable suspicion to detain you and investigate whether you have a CHL. This has been an issue in other states, where someone OC'ing is illegally detained and asked to ID himself to make sure he has a license, and/or is not a felon prohibited from possessing a firearm. Such detentions are illegal and unconstitutional, but it doesn't seem to stop LEOs from doing it and harassing law-abiding citizens.
You're a lawyer. Can a LEO pull me over while driving to make sure that I don't have an expired drivers license, assuming I've broken no laws? It's exactly the same thing.

This stuff (hopefully) will get harder and harder to pull as more PDs adopt body cameras and it's not so easy to make something up that might cover reasonable suspicion.

Also note that in other OC states, legislation often states explicitly that the mere presence of a firearm does not in and of itself warrant a stop.
No, LEO cannot stop and detain you just to "check and see" if you are committing a crime. They first must have reasonable suspicion to stop and detain you. So, no...LEO cannot pull you over just to "check and see" if you have an expired driver's license, or insurance, etc.

Now, if you're speeding, or committing any other traffic violation, they can stop you for the traffic violation, and while detained they can check to see if you have a valid license, valid insurance, etc. But they can't just pull you over for the hell of it. That's what we call a fishing expedition, and it's illegal and unconstitutional.

I truly hope that if "licensed" OC passes, the statute is amended to state that the open carrying of a firearm, in and of itself, does not give LEO reasonable suspicion or probable cause to stop and detain a person to see if he or she possesses a valid "license." Otherwise, I foresee law-abiding OC'ers with licenses being unconstitutionally harassed, and unlicensed OC'ers will get their charges thrown out because the LEO had no RS or PC to stop and detain them in the first place.
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Re: One problem/issue if licensed OC passes

#8

Post by mr1337 » Mon Feb 16, 2015 4:46 pm

Texas1999 wrote:Otherwise, I foresee law-abiding OC'ers with licenses being unconstitutionally harassed, and unlicensed OC'ers will get their charges thrown out because the LEO had no RS or PC to stop and detain them in the first place.
You can beat the rap, but not the ride.

If OC'ers get detained or arrested for simply open carrying and refusing to provide ID, I hope some lawsuits are in order to properly compensate the victims for the unconstitutional arrest/detainment. Unfortunately, that's the only way LEO departments will learn what they can and can't do.

Here's some Supreme Court cases to be familiar with:
  • Brown v. Texas - officers must have reasonable suspicion to detain you
  • United States v. Black - a firearm, when legally carried, does not create reasonable suspicion. Felon is not the default status.
I would argue that if you are not being detained and a LEO asks you for your ID, you do not have to provide your ID because you can be on your way. Remember, under Texas law, you are only required to provide your driver's license when driving. You have to provide your name, address, and DOB only when arrested.

However, the kicker is this:
Sec. 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.
Because of 411.205, would a CHL holder be required (by law) to display his CHL if openly carrying, even if there is no lawful grounds for detainment? Would a violation of 411.205 create lawful grounds for detainment and arrest?

I feel this is one are that SB17 should expand on.
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Re: One problem/issue if licensed OC passes

#9

Post by The Annoyed Man » Mon Feb 16, 2015 8:31 pm

I don't think it is going to be that big of an issue.... except perhaps in Austin or Houston. As long as we've had CHL, I think that most LEOs are well acclimated to the idea of armed citizens.
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Re: One problem/issue if licensed OC passes

#10

Post by Jumping Frog » Tue Feb 17, 2015 6:14 am

We must keep in mind the distinction between states that allow unlicensed open carry versus states that allow licensed open carry.

An LEO in a states where all citizens who can legally possess firearms can open carry does not have reasonable articulable suspicion (RAS) to detain someone and check their ID solely on the basis that they might be a felon or otherwise prohibited person. In this circumstance, the vast majority of citizens are legal to carry, so presence of a firearm in and of itself is not sufficient RAS.

However, in states requiring a license to open carry, there are court cases stating that open carrying is sufficient reason for an officer to detain and check for the license. In these states, licensees are a very small percentage of the population.
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Re: One problem/issue if licensed OC passes

#11

Post by Right2Carry » Tue Feb 17, 2015 6:37 am

I am reminded of DUI checkpoints where LEO stop cars based on that someone "may" be breaking the law. Where was the reasonable suspicion then?
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Re: One problem/issue if licensed OC passes

#12

Post by jmra » Tue Feb 17, 2015 7:30 am

Right2Carry wrote:I am reminded of DUI checkpoints where LEO stop cars based on that someone "may" be breaking the law. Where was the reasonable suspicion then?
I thought the courts did away with those checkpoints in Texas a while back.
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Re: One problem/issue if licensed OC passes

#13

Post by The Annoyed Man » Tue Feb 17, 2015 7:39 am

Right2Carry wrote:I am reminded of DUI checkpoints where LEO stop cars based on that someone "may" be breaking the law. Where was the reasonable suspicion then?
Hey, if it's Saturday night, there's a reasonable suspicion that you're drunk.

I am just kidding of course..... but just barely. I don't know where this figure came from, or even if it was true or not, but back in my ER days, I remember being told by "someone who would know" that on any given Friday or Saturday night, something like 80% of drivers on the road after 8pm have measurable amounts of alcohol in their systems...... or maybe it was that 80% of drivers after 10pm are over the legal limit ......something like that. It's been 30 years since I worked in the ER, so I've forgotten details like that. But what I DO know is that on any average Friday or Saturday night, a very large percentage of our ER patients were half-lit on arrival, regardless of whether they were there for treatment of injuries, or treatment of illness. What's "a very large percentage" mean? Maybe 1 out of every 3 or 4 patients had esters of alcohol on their breath, and at least some slight impairment. And that doesn't count the ones who were high on something besides alcohol.

I get it that just because the guy behind me in the sobriety checkpoint line is drunk, that doesn't mean I'm drunk; and just because his behavior is suspicious, that doesn't mean that my behavior is suspicious. I also get it that law enforcement often pushes the boundaries of what is Constitutionally permissible. But you have to remember something..... for a lot of these kinds of things, they seem to be unconstitutional to anyone who has read the Constitution, but that is not the standard that law enforcement operates on. Law enforcement operates on the standard of what the courts say is constitutional or not, and for whatever reasons, the courts will sometimes uphold law enforcement's attempts to be proactive in preventing crime. The 4th Amendment right to be secure in my person, houses, papers, and effects, against unreasonable searches and seizures isn't as simple as that statement reads. It should be, but it isn't; and it isn't that simple because the courts have given police permission to interpret that very liberally in their favor in certain types of instances. I'm not saying this is right. I'm just saying it is what it is, and police are zealous because they want to catch bad guys and stop crime......not because they are by nature a bunch of nazi thugs. They are not. They just want to be effective, and if the court says that they can roust you just because it's Tuesday and you walk with a limp, then they will do that if they think it will reduce crime.

I'm also saying that, especially with regard to drunk driving, it is understandable. By that, I mean that it isn't hard to understand what drives law enforcement to setup sobriety checkpoints. It is fine to have a conversation about our rights and to be angry because we've been treated with suspicion merely by virtue of having had the bad luck to drive into a sobriety checkpoint; but I would also challenge people who object to this to go spend a couple of weeks working the night shift in a large Emergency Room, and to be personally involved in managing the carnage that results from drunk driving. It is absolutely horrible, and you have to dead from the neck up with a heart of stone to see that carnage and not feel like somebody should do something about it, so that it doesn't keep happening. And as much as it impacts the first responders who deliver the victims of that carnage to the ER, and the nurses, doctors, technicians who try to put those victims back together, it impacts the families and friends of those victims even worse. The ER has the patient for a few hours at most. The families and friends deal with the aftermath for days or weeks or months.....assuming that the victim lived.

So what happens is that people start demanding that somebody do something. Their lives have been impacted, and they want to make the problem go away. They talk to city councils and police chiefs. They vote for "law and order" political candidates. Etc., etc., etc. And the voices of the majority, who feel safer knowing that police are rousting sober drivers while looking for the ones who are drunk, are much, much louder than the voices of the minority who say "my rights are absolute, and your fears about drunk drivers do not give you the moral or constitutional authority to violate my 4th Amendment rights."

And by the way, this happens to be exactly why we always face such an uphill battle to restore the full expression of our right to keep and bear arms. There may be upwards of 300 million privately owned firearms in the possession of upwards of 90 million homes......or whatever the numbers are......but "gun owner" does not always equal "2nd Amendment absolutist". And because some gun-control advocates are also gun-owners, it is often the case that the voice of the gun control crowd is louder than the voice of the 2nd Amendment absolutists.

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Re: One problem/issue if licensed OC passes

#14

Post by Target1911 » Tue Feb 17, 2015 8:58 am

I drive a tow truck. 3 different times I have been pulled over and bombarded with questions simply because I was towing a vehicle down the road. No other laws were broken or reason given for the stop. I asked one of them and he said it was an INVESTGATIVE stop. Hogwash. One of these was just 2 nights ago. Cost me 30 minutes of my time.

Also Pantego (Arlington suburb) regularly has check stops looking for drunks...checking DLs and for insurance.
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Re: One problem/issue if licensed OC passes

#15

Post by Dadtodabone » Tue Feb 17, 2015 11:14 am

The Annoyed Man wrote:Hey, if it's Saturday night, there's a reasonable suspicion that you're drunk.

I am just kidding of course..... but just barely. I don't know where this figure came from, or even if it was true or not, but back in my ER days, I remember being told by "someone who would know" that on any given Friday or Saturday night, something like 80% of drivers on the road after 8pm have measurable amounts of alcohol in their systems...... or maybe it was that 80% of drivers after 10pm are over the legal limit ......something like that
According to a studies done by the NHTSA and IIHS:
Percentage of Drivers with Measurable Levels,
1973, 36%
1986, 26%
1996, 17%
Percentage of Drivers with BAC of 0.10 or greater(impaired in all 50 states),
1973, 5.1%
1986, 3.2%
1996, 2.8%

http://www.iihs.org/iihs/news/desktopne ... rvey-finds
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