SB112--ONLY applicable in Disasters/State of Emergency?

[JohnKSa]

How does SB112 relate to traffic stops--or does it?

The law specifically states that it is applicable in a state of emergency or disaster--is there another law that applies to standard traffic stops or is there something I'm missing?

[Xander]

How does SB112 relate to traffic stops--or does it?

It doesn't. It's only for situations where a state of emergency has been declared, and was specifically introduced to prevent post-Katrina like situations. Nothing to do with traffic stops at all.

[JohnKSa]

Ok, so are we to assume that police have MORE or LESS power to confiscate weapons when a state of emergency/disaster does NOT exist?

[Xander]

Is this what you're looking for?

§ 411.207. AUTHORITY OF PEACE OFFICER TO DISARM. A peace
officer who is acting in the lawful discharge of the officer's
official duties may disarm a license holder at any time the officer
reasonably believes it is necessary for the protection of the
license holder, officer, or another individual. The peace officer
shall return the handgun to the license holder before discharging
the license holder from the scene if the officer determines that the
license holder is not a threat to the officer, license holder, or
another individual and if the license holder has not violated any
provision of this subchapter or committed any other violation that
results in the arrest of the license holder.

Or this?

§ 411.206. SEIZURE OF HANDGUN AND LICENSE. (a) If a peace
officer arrests and takes into custody a license holder who is
carrying a handgun under the authority of this subchapter, the
officer shall seize the license holder's handgun and license as
evidence.

[JohnKSa]

So, as I read it, his powers of confiscation are actually broader under normal circumstances...

Is that intended or is this something that will get fixed next legislative session?

[txinvestigator]

So, as I read it, his powers of confiscation are actually broader under normal circumstances...

Is that intended or is this something that will get fixed next legislative session?

A peace officer cannot confiscate anything minus a warrant or the existence of an exception to the search warrant requirement, and then only contraband or evidence of a crime.

A peace officer can temporarily disarm a CHL holder during a traffic stop, but when you are released he must return it.

He can also seize your handgun if he arrests you for something.

None of that changes during an emergency/disaster.

[nitrogen]

OK folks: Disarm != Confiscate. If you're stopped, if an officer deems it necessary (and whats considered necessary is a discussion onto itself, lets skip that for now) he or she can remove the weapon from your custody for the duration of the traffic stop.

After the stop, they must return it to you, unless they make an arrest.

Now if you get arrested, of course they can confiscate your gun and CHL if both are material to your arrest.

EDIT: Beaten by seconds by TXi.

[seamusTX]

The police have the power to disarm a specific person for a specific reason. SB112 prohibits them from going door-to-door and disarming people based on a general "state of emergency."

If the police come to your door, and they do not have a warrant or an exigent reason like someone in the house screaming for help, you can just ignore them.

- Jim

[flintknapper]

OK folks: Disarm != Confiscate. If you're stopped, if an officer deems it necessary (and whats considered necessary is a discussion onto itself, lets skip that for now) he or she can remove the weapon from your custody for the duration of the traffic stop.

After the stop, they must return it to you, unless they make an arrest.

Now if you get arrested, of course they can confiscate your gun and CHL if both are material to your arrest.

EDIT: Beaten by seconds by TXi.

Apparently, (according to more than one account) they can also remove the magazine (if so equipped), empty the chamber, empty the mag., hand you back the whole mess afterward....and request that you not recharge the weapon until after they have left??????

I don't know if taking it to that level is "legal" or not, and I've only heard of a few accounts of this happening. Sure irks me though.

Anyway, I'm taking this off topic.....sorry.

[JohnKSa]

A peace officer can temporarily disarm a CHL holder during a traffic stop, but when you are released he must return it.

As I read the statute, he only has to return it...

if the officer determines that the license holder is not a threat to the officer, license holder, or another individual

As I read it, the officer can, at his discretion, retain the gun if he feels that the license holder is a threat to the officer, to himself or to others. That provides a lot of leeway for an officer to retain a gun since I don't see a clear definition of what constitutes being a threat to the officer, to himself or to others.

In addition, the statute also says the officer can retain a gun for a misdemeanor CHL violation (other violation under this subchapter).

SB112 is much more specific about when an officer can/can't retain the firearm, and it doesn't include the CHL violations or the quote about the officer determining the person is a threat.

What worries me about the 411 statute is that the language describing a situation where he could, at his own discretion, retain the gun is virtually identical to the language that allows him to disarm the person initially.

...may disarm a license holder at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.

In other words, if asked why he retained the gun after the stop was complete the officer would only have to say: "For the same reason I disarmed him in the first place." and the law would back him up...

[seamusTX]

As I read it, the officer can, at his discretion, retain the gun if he feels that the license holder is a threat to the officer, to himself or to others. That provides a lot of leeway for an officer to retain a gun ...

A LEO encounter can go one of two ways:

• The officer decides that no probable cause for an arrest exists, returns the weapon, and lets the person go on his way.
• The officer decides that probable cause exists, keeps the weapon, and arrests the person.

Let's look at a hypothetical scenario: Police officer responds to a 911 call about a disturbance. He finds a man and woman having a loud, heated argument. He asks for ID and one turns out to have a CHL and be armed. He disarms the CHL holder and starts asking questions.

If, in his judgment, the CHL holder is a threat to the other person, he is obligated to arrest.

He can't just tell them to behave, keep the weapon, and leave. Not legally, anyway.

He can't act on some hypothetical notion that everyone is a potential threat.

- Jim

[JohnKSa]

I think that is overly simplistic. One only has to look at the statute to see that the officer's option to retain due to the threat is called out separately from arrest.

The peace officer shall return the handgun to the license holder before discharging the license holder from the scene if the officer determines that the license holder is not a threat to the officer, license holder, or another individual and if the license holder has not violated any provision of this subchapter or committed any other violation that results in the arrest of the license holder.

He can't act on some hypothetical notion that everyone is a potential threat.

Indeed he can, in fact that is what gives him the right to disarm in the first place...

may disarm a license holder at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.

[seamusTX]

§ 411.207 has been in effect for 12 years, and I've never heard of an officer using it to confiscate a weapon.

CHL holders have been wrongly arrested a couple of times, but not disarmed and left free.

The police have to act on reasonable suspicion or probable cause that a crime has occurred. They can't violate someone's rights based on a hypothetical possibility.

- Jim

[JohnKSa]

§ 411.207 has been in effect for 12 years, and I've never heard of an officer using it to confiscate a weapon.

But we have heard of it's being used to disarm CHL holders. Given the fact that the wording for the criteria to disarm is virtually identical to one criterion to confiscate it seems that the officer could confiscate under 411.207 on his own discretion and he would be justified if he were justified in disarming in the first place.

What concerns me is that SB112 sets up a situation where it is quite difficult to confiscate a weapon in an emergency/disaster but it appears that it's actually easier for an officer to confiscate a weapon under normal circumstances.

[seamusTX]

I have nothing further to add. Have a good turkey day.

- Jim