OC Carry question

[jmra]

[b322da]

It is predictable that there will be those who push the open-carry envelope too far and as a result will find themselves in a jam. It may be just a temporary jam which they get out of with the assistance of a competent attorney and by having the right judge in a courtroom, but it could be a very costly temporary jam. Resolving questions like the hypothetical posed here is why we have judges and juries when the question is no longer hypothetical,

When one chooses to accept the possible consequences of pushing the envelope he is confident of the correctness of his personal opinion as to an unanswered question, and he gambles. We have seen here in this thread both differences of opinion and confident statements of fact, one way or another. One must make his choice and live with the consequences if it proves to be wrong.

Having said that, we see here, once again, a hypothetical legal question of statutory construction, one, in my own opinion, generated out of whole cloth. It has been correctly suggested here that legislative intent is a factor which must be, and will be, considered by both an individual faced with such a question and by the judicial authority which may be the final decision-maker. Personally, I do not think that the question of legislative intent here is all that difficult -- but I may be wrong. Goodness knows I have been wrong before. An unclear statute is usually construed in a way that makes sense; when a judge is faced with a decision which could result in an absurd result he does not often go that way -- but, as we all know, he sometimes does.

So, at the bottom line you, yourself, are the first judge, and when faced with such a question you must balance the cost to you of being wrong with the value to you of being right.

Jim

[jmra]

Very well stated - risk management.

[mojo84]

Some solid wisdom right here.

So, at the bottom line you, yourself, are the first judge, and when faced with such a question you must balance the cost to you of being wrong with the value to you of being right.

Jim

[jimlongley]

So, if I wear a piece of rope as a belt ala Jethro Bodine, will my Crossbreed Supertuck or other belt holster still meet the legal requirement? How about if I use duct tape?

Exactly. The law states that the gun must be in a belt or shoulder holster, it doesn't say it has to be on a belt, or shoulder. I think the wording would have been clearer if it had said something on the order of: "Carried in a belt or shoulder holster and worn on a belt or shoulder harness."

[mojo84]

I was actually being facetious. I think it's obvious the intent is a holster designed as a belt or shoulder holster and worn as designed. A piece of rope may be worn as a belt but it doesn't make it a belt.

What's the point in trying to find the outer limits of what is acceptable. If one does then one needs to consider Jim's comments above.

[Beiruty]

So, if I wear a piece of rope as a belt ala Jethro Bodine, will my Crossbreed Supertuck or other belt holster still meet the legal requirement? How about if I use duct tape?

Exactly. The law states that the gun must be in a belt or shoulder holster, it doesn't say it has to be on a belt, or shoulder. I think the wording would have been clearer if it had said something on the order of: "Carried in a belt or shoulder holster and worn on a belt or shoulder harness."

Our problem it says, starting in part(2): (2) the person was carrying:

[mojo84]

Maybe the legislature should have said wearing a firearm openly in a belt or shoulder holster instead of carrying.

[jimlongley]

So, if I wear a piece of rope as a belt ala Jethro Bodine, will my Crossbreed Supertuck or other belt holster still meet the legal requirement? How about if I use duct tape?

Exactly. The law states that the gun must be in a belt or shoulder holster, it doesn't say it has to be on a belt, or shoulder. I think the wording would have been clearer if it had said something on the order of: "Carried in a belt or shoulder holster and worn on a belt or shoulder harness."

Our problem it says, starting in part(2): (2) the person was carrying:

Yes, but I can carry in my pocket, in my hand, or even balanced on top of my head, and according to the wording of the law, I am still legal as long as the gun is in a belt or shoulder holster.

Don't get me wrong, I am not likely to do such a thing, but the law of unintended consequences says that someone will.

Maybe the legislature should have said wearing a firearm openly in a belt or shoulder holster instead of carrying.

IMO that would go a long way toward fixing it, but I could still "wear" a belt or shoulder holster other than on my belt.

[WildBill]

So, if I wear a piece of rope as a belt ala Jethro Bodine, will my Crossbreed Supertuck or other belt holster still meet the legal requirement? How about if I use duct tape?

Exactly. The law states that the gun must be in a belt or shoulder holster, it doesn't say it has to be on a belt, or shoulder. I think the wording would have been clearer if it had said something on the order of: "Carried in a belt or shoulder holster and worn on a belt or shoulder harness."

Our problem it says, starting in part(2): (2) the person was carrying:

Yes, but I can carry in my pocket, in my hand, or even balanced on top of my head, and according to the wording of the law, I am still legal as long as the gun is in a belt or shoulder holster.

Don't get me wrong, I am not likely to do such a thing, but the law of unintended consequences says that someone will.

Maybe the legislature should have said wearing a firearm openly in a belt or shoulder holster instead of carrying.

IMO that would go a long way toward fixing it, but I could still "wear" a belt or shoulder holster other than on my belt.

I understand your reasoning, but there is a lot of history using the term "concealed carry" so I don't see that happening.

[jmra]

I personally can't wait to sit back and watch some of the dash cam video of people who try to make the law fit what they want to do. I think some are going to be in for a rude awakening. Hopefully DPS provides some clarification to some of these "gray" areas before the 1st and save OCers and officers some embarrassing moments.

[jimlongley]

I personally can't wait to sit back and watch some of the dash cam video of people who try to make the law fit what they want to do. I think some are going to be in for a rude awakening. Hopefully DPS provides some clarification to some of these "gray" areas before the 1st and save OCers and officers some embarrassing moments.

I don't think it's up to DPS, but maybe the Attorney General . . .

[jmra]

I personally can't wait to sit back and watch some of the dash cam video of people who try to make the law fit what they want to do. I think some are going to be in for a rude awakening. Hopefully DPS provides some clarification to some of these "gray" areas before the 1st and save OCers and officers some embarrassing moments.

I don't think it's up to DPS, but maybe the Attorney General . . .

I guess I was thinking about the DPS FAQ page and their training guidance to instructors for their classes.

[b322da]

I personally can't wait to sit back and watch some of the dash cam video of people who try to make the law fit what they want to do. I think some are going to be in for a rude awakening. Hopefully DPS provides some clarification to some of these "gray" areas before the 1st and save OCers and officers some embarrassing moments.

I don't think it's up to DPS, but maybe the Attorney General . . .

If this is indeed an unclear statute, the first person having to decide what he thinks it means is the person carrying the weapon.

Next is probably an LEO, possibly under some stress, having to decide what he thinks it means when he observes the person carrying the weapon. (Although there may be a person screaming "man with a gun" in between these two, and not simplifying the LEOs problem).

Might it not be helpful to the thousands of LEOs of various categories in Texas, and as well, the general public, even as an interim measure, for the DPS to grab the bull by the horns, and publish early on its institutional opinion with respect to what it means? When I say "opinion" here, I mean just that, as contrasted with the DPS stating what the statute really, for certain, means. Such a statement by the DPS might well say, explicitly, that questions have arisen about the clarity of the statute, and that the DPS is giving its best opinion pending what might be a lengthy passage through the judicial system.

One might even suggest that the DPS has a duty to do something like this, by way of perhaps removing some of that stress felt by individual LEOs on a daily basis. Being expressed as only an opinion, it may be wrong, and that should be admitted, but the DPS and its lawyers will have tried their best. To do so, giving the caveat expressed above, would not at all usurp the authority of individual prosecutors, DAs, the AG, grand juries, the courts, or anyone else.

As I have observed earlier, I do not personally think we have a big issue here. When I was in the service we had the expression "sea lawyers," which might be pertinent here. Of course I direct this at no particular individual.

Jim

[C-dub]

Typically, LE agencies are not in the habit or position of interpreting what a law means. However, all too often, many are in the habit of letting the judge sort it out at our expense.