Carrying to a car

[Liko81]

An interesting question posed on another forum. To preface, here is Section 46.02; note the bold print:

§ 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person
commits an offense if the person intentionally, knowingly, or
recklessly carries on or about his or her person a handgun, illegal
knife, or club if the person is not:
(1) on the person's own premises or premises under the
person's control; or
(2) inside of or directly en route to a motor vehicle
that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person
intentionally, knowingly, or recklessly carries on or about his or
her person a handgun in a motor vehicle that is owned by the person
or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a
Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(B) prohibited by law from possessing a firearm;
or
(C) a member of a criminal street gang, as
defined by Section 71.01.

The question posed has to do with a little loophole apparently posed by the wording of this law. It is illegal to carry a handgun in general, but it is not illegal to do so while enroute to or in your car. However, it becomes illegal again if you are in your car and not concealing it. Do you see the loophole yet? There is nothing in this law stating that you must conceal a weapon you are carrying while enroute to your car. So OC is legal in public, not just your own property, as long as "public" is your apartment's parking lot.

Some of you might point to the Disorderly Conduct statute (display of a weapon in a manner calculated to alarm). I would in turn point to Grieve v State of Texas, which says in effect that mere display of a weapon is not, in and of itself, evidence that it was carried with intent or reckless disregard to alarm and thus is not RAS, much less PC, that a crime is being committed.

Opinions?

[bauerdj]

It also covers TO A CAR, but not FROM a car

Dave B.

[Charles L. Cotton]

I have to be very guarded in my comments, but I can say this much.

1. We do not want this part of the Penal Code opened up for amendment. We're already going to have to defend it in 2009 and if people push the envelope by carrying openly on the way to their car, then we won't like the legislative response.

2. Although not stated in the statute, it is implicit that you must be "directly en route" to your motor vehicle from a location where it was legal for you to be carrying a handgun without a CHL. (This means your home, business, car or other location that falls within the "Not Applicable" provisions of TPC §46.15.) Otherwise, you can be charged with a violation of TPC 46.02 (a/k/a UCW), not because of the walk to the car, but for carrying without a CHL before you started walking to the car.

3. If someone is openly carrying a handgun, as soon as they sit down in their car they violate TPC §46.02(a-1), unless they conceal the handgun before they enter. This would be a very dangerous game to play, from a legal standpoint. (I understand you are not advocating doing this, but are just posting this for discussion purposes.)

Chas.

[Liko81]

It also covers TO A CAR, but not FROM a car

Dave B.

True, and gun owners are going to push for a clarification of this point, to the effect of it being legal to carry a handgun between your car and anywhere else exempted by 46.15 (home, business, other real property) because that is the spirit of the law as naturally read. However, that does open up Chas' can of worms regarding whether it has to be concealed at such time; it's very easy to see OC while enroute between home and car as a loophole, just like I said, and in clarifying that you can also carry FROM your car to a 46.15 location, the Legislature could also include the stipulation that it be concealed.

'Course, gun owners will also hopefully be pushing for OC in some form or fashion, and if they succeed in that, the entirety of TPC Chapter 46 could change. Personally I'd hope for that.

[Excaliber]

There is nothing in this law stating that you must conceal a weapon you are carrying while enroute to your car.

While the precise wording of the law (which of course is what counts in court ) may be a little bit ambiguous here, besides the very important strategic and legal issues Charles has raised, I think three things are worth considering in how the apparent ambiguity should be managed as a practical matter:

1. Open carry in general is currently illegal here except in very limited circumstances. This extends to the inside of the vehicle in the vehicle carry law. I think we could
reasonably infer that the legislative intent is that folks who carry in their vehicles not expose the weapons going to or from them either. If our legislators don't want
us to do things that might spook the horses, I think horse sense dictates that it would be wise to honor that.

2. Carrying openly to or from a vehicle would negate the elements of uncertainty and tactical surprise that a concealed weapon gives you. These are an advantages I
would not give away voluntarily, because what is known can be taken into account in the BG's attack plan. Remember that they seldom work alone, they are still
deciding whether or not to follow through during their initial approach, and they tend to default to a self preserving abort tactic when unpleasantly surprised.

Some might feel that open carry would serve as an additional deterrent to being approached by a bad guy. There's some truth to this, but on balance I don't think it
outweighs the loss of tactical surprise and the social consequences of some of your neighbors giving you a very wide berth after the first time they saw an exposed
weapon. Particularly in an apartment environment, it could also flag your home as a burglary target on the theory that if you have one gun, you may have others,
and you probably can't carry them all every time you go out. Predators are poorly intentioned, but they come in a variety of flavors and it's a mistake to think they're
stupid.

3. There are more than enough other and better ways available to communicate to would be predators that close approach is unwelcome and inadvisable.

[The Annoyed Man]

One could play all kinds of games with this stuff. For instance, I park my cars around behind my house, behind a locked gate, and my yard has a high fence all the way around it so that neighbors may not see what is going on in my yard without shinnying up a tree. So, if I did not hold a CHL, would I still be required to carry my weapon concealed to the car, and furthermore, once inside the car, as long as I'm just sitting there and I don't back out of the driveway, must my firearm be concealed, since nobody can be there to see it in the first place without my invitation?

Personally, I think that looking for loopholes is counterproductive for a couple of reasons. One reason I think so is partly because, as Charles has mentioned, I don't want to draw unnecessary attention to an issue which is likely to come before the upcoming legislative session, and which make that issue more contentious than it already is. If I get busted in my pursuit of loopholes, I've merely given the antis additional "evidence" that the law must be tightened up, and the media, being on board with the antis agenda, will trumpet that need to the four winds. For an anti, "tightened up" means "further restriction to the RKBA." The legislature may respond accordingly, and I may not be happy with the result, but I would be partially responsible for it through my own lack of responsibility.

The other reason I think so is that, until an issue has been clarified by the legislature one way or the other, the practical legal applications are likely not to go in my favor should I be arrested for pushing the boundaries without the legislative imprimature. Frankly, I can't afford a lawyer right now. Similarly, until I can afford to get myself a new health insurance policy (I'm working on that after having lost the coverage I had when I became self-employed), I will avoid as much as is possible those behaviors likely to place my health at imminent risk. Therefore, why push it? Since keeping the weapon concealed on the way to your car is permitted even without a CHL as long as you are carrying from an approved place to your car, and since concealing the weapon is easy, why bring down more trouble on yourself by pushing things? Life is already full of trouble. Who among us needs more?

[Liko81]

Since keeping the weapon concealed on the way to your car is permitted even without a CHL as long as you are carrying from an approved place to your car, and since concealing the weapon is easy, why bring down more trouble on yourself by pushing things? Life is already full of trouble. Who among us needs more?

I agree with the sentiment, however concealing the weapon is not always easy. In order to conceal the weapon between home and car, it either has to be in a bag or briefcase (and I rarely carry one around) or concealed under a collared shirt (requiring a tuckable holster, which must be put in place and tucked, then 30 seconds later while sitting in a car i have to untuck, remove the holster and retuck). There are easier solutions (i.e. keep a pistol in the car at all times, thus avoiding the rigamarole of getting it from car to home and back) but if I have to transport a pistol concealed it may be more difficult or annoying than was implied.

[BigDan]

We are having a similar discussion somewhere, but I'm lazy at the moment and not wanting to search.

Basically... It has been allowed in the past to carry a cased gun to your car if you were going to lock it up in your trunk, unloaded. The weapon has to be off your person. It has been allowed in the past to carry your gun uncased, but weapon/ammo in separate locations for travel over 3 counties to fall under the Travel Rule.

What has changed is that now you can carry a loaded weapon in your car, concealed. Nothing more has changed. You are not allowed to carry it concealed to/from your Domicile. Therefore, I highly recommend something as basic as a fanny pack you carry in your hand to get from point A to point B and back again. Once inside your vehicle, have a towel you can throw over the top of the pack, unholster and place where you want it OR, tuck the pack between the seats and cover it with the same towel so you can draw from it.

-OR- just get a CHL as quickly as you DPS will allow. ;-]

Just my thoughts on it.

[austin-tatious]

...I park my cars around behind my house, behind a locked gate, and my yard has a high fence all the way around it so that neighbors may not see what is going on in my yard without shinnying up a tree. So, if I did not hold a CHL, would I still be required to carry my weapon concealed to the car, and furthermore, once inside the car, as long as I'm just sitting there and I don't back out of the driveway, must my firearm be concealed, since nobody can be there to see it in the first place without my invitation?

You can open carry on your own property, correct? (Though not necessarily a good idea, depending on time of day, visibilty from passers by and neighbors etc.) So openly carrying the pistol from the house to the car in the above circumstance is not a problem at all?

[Liko81]

We are having a similar discussion somewhere, but I'm lazy at the moment and not wanting to search.

Basically... It has been allowed in the past to carry a cased gun to your car if you were going to lock it up in your trunk, unloaded. The weapon has to be off your person. It has been allowed in the past to carry your gun uncased, but weapon/ammo in separate locations for travel over 3 counties to fall under the Travel Rule.

What has changed is that now you can carry a loaded weapon in your car, concealed. Nothing more has changed. You are not allowed to carry it concealed to/from your Domicile. Therefore, I highly recommend something as basic as a fanny pack you carry in your hand to get from point A to point B and back again. Once inside your vehicle, have a towel you can throw over the top of the pack, unholster and place where you want it OR, tuck the pack between the seats and cover it with the same towel so you can draw from it.

-OR- just get a CHL as quickly as you DPS will allow. ;-]

Just my thoughts on it.

Um, see the law posted above. First you're contradicting yourself (carry in a fanny pack, whether belted to you or just in your hand, counts as "concealed on or about your person", which you said in the previous sentence you can't do without a CHL). Second, the 2007 changes to 46.02 do in fact say that persons walking from their home to their car are excepted from charges under the statute. They even made the exception part of 46.02 itself, not the "nonapplicability" section (46.15). Therefore, you cannot be charged with UCW while carrying enroute to your car; synonymously, carry in some form or fashion "on or about your person" is legal while heading to your car. This much is very clear. My question is that, because 46.02 as written applies to ALL carry modes, whether the exception for persons carrying to their car, which do not specify a legal or illegal carry mode for doing so, thus exempts ALL modes of carry to a vehicle.

Chas, about your argument. I am not disagreeing with the fact that such things can and do happen; if I were to gain public attention for an activity that is technically legal due to the letter of the law, the legislature can indeed change that letter, and a few others for good measure. The Black Panthers certainly proved that in California. However, I will also say that this argument is used too often to argue against OC and other rights-related demonstrations; "Yeah, it's legal, but don't do it or they'll make it illegal". What if that applied to another gun law whose applicability is ambiguous from its wording, like 30.06? "Yeah, it's legal to ignore a non-compliant sign, but don't do it or they'll give force of law to any 'no guns' sign placed anywhere". Horse hockey; that interpretation has been upheld in court, and the Legislature hasn't yet seen fit to change that section to reflect any differing "true spirit of the law". Everyone on this forum knows that and tells anyone who asks (except the posted business) without any fear that the law will change.

Open carry, in other states where it is legal, sometimes gets OCers accosted, detained and even arrested by police who do not know it is lawful; however in these cases it's usually the department who ends up in trouble for false arrest. The State would have a valid political and financial interest to change the law; false arrests for OC cost millions and and antis scream to everyone who listens every time, along the lines of "not only is the menace to peaceful society walking free, he's getting a pile of money; what kind of justice is this?". Do those states crack down on OC? No; instead the offending department is directed to educate their officers.

If you do not exercise your right to perform a lawful action out of fear of it being made illegal, then the Legislature doesn't even have to waste time on it; it's illegal de facto because you think others think it should be. Kinda backwards there.

All that said, this is not a clearly-defined statute like most pre-emption for OC, but truly a loophole due to ambiguous wording. I might or might not be able to argue using Grieve v State and Florida v J.L. that OC, or a report of such, is not by itself evidence that I intended to incite alarm or recklessly disregarded the risk of alarm to others. I may win if DC were the only thing they tried to use, or if they charged me under 46.02 and I successfully argued that the statute simply does not apply. Or I could be convicted and disqualified from having a CHL for 5 years. Not a risk I currently want to take.

[M9FAN]

As usual, good discussion guys/gals.

[pedalman]

As I mentioned in another thread, it's better to be able to choose one's battles. However, the catch is that one must choose wisely.

[The Annoyed Man]

...I park my cars around behind my house, behind a locked gate, and my yard has a high fence all the way around it so that neighbors may not see what is going on in my yard without shinnying up a tree. So, if I did not hold a CHL, would I still be required to carry my weapon concealed to the car, and furthermore, once inside the car, as long as I'm just sitting there and I don't back out of the driveway, must my firearm be concealed, since nobody can be there to see it in the first place without my invitation?

You can open carry on your own property, correct? (Though not necessarily a good idea, depending on time of day, visibilty from passers by and neighbors etc.) So openly carrying the pistol from the house to the car in the above circumstance is not a problem at all?

I really don't know how much "visibility" plays into the law as it currently stands. I sometimes have my car out in front of my house when I'm carrying firearms out to it for a range trip. With the exception of whatever I happen to have concealed on my person as a carry weapon at that moment, my firearms are without exception carried in an appropriate hard shell case - particularly my scoped rifles in which I have a lot of money invested. A neighbor might speculate that those cases contain a firearm, but unless I open the case for their inspection, they cannot know it for a certain fact. I might be mistaken, but I believe that there is no penalty under Texas law for the open carry of a long gun - although one may reasonably question the wisdom of it according to whatever circumstances are in play at that given time or place. If that's true, then I am under no obligation to conceal my rifles on the way to my car, although it would not be my personal inclination to carry them in the open. But I honestly don't know if the same standard applies to handguns.

In the case of my own back yard, I have a reasonable expectation of privacy. As I said, a neighbor would have to shinny up a tree and spy on me to see me carrying a firearm back there. My front yard has no such barriers to observation, and I live on a smallish (1/4 acre) lot, so I have no reasonable expectation that I cannot be observed while carrying my handguns to the car.

My understanding of the law as it currently stands is that I may carry my weapon concealed on my person (or, concealed in my possession) from my house/place of business to my vehicle, without the need of a CHL to do so. My further understanding is that concealment is required if such carry would otherwise be outside the confines of a reasonable expectation of privacy, such as a vehicle parked at the curb, or in a parking lot accessible to other people.

But that's just my understanding, and since I already possess a CHL, the issue of whether or not I may carry between my dwelling/office and my vehicle is moot anyway.