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

srothstein · Post by **srothstein** » Thu Nov 22, 2007 2:14 pm

seamusTX wrote: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.

Jim, I disagree. He can legally keep the weapon and leave without an arrest. If I get a call for a loud heated disturbance. I find the CHL and disarm him. I determine that he is the aggressor in the argument and is intoxicated. There has been no violence yet, but he gives me enough indications that there might be in the near future that I determine, in my best professional judgment. This makes him a threat to the safety of another person under the law. But he has committed no crimes as of yet since it is not yet illegal to be drunk in your own home or to argue with your spouse. I could legally keep the weapon overnight until he is sober and the argument is over. He would go to the police station the next day to retrieve it.

Many, if not most, disturbances get handled by asking one of the parties to leave the house for the night. Many times, we get called back to the same disturbance because both refuse to leave. Many times, if we are being honest cops, we handle the same call three or four times until some type of violence does occur and we can arrest one or both parties. Of course, most cops will find some other minor offense to make an arrest for before that time, such as tricking one of the people into stepping outside so they can be arrested for PI.

seamusTX · Post by **seamusTX** » Thu Nov 22, 2007 2:25 pm

Wow, I can't tell you how surprised I am at Steve's response.

I know in the past that officers tried to defuse domestic situations without arrest. I thought they had stricter rules now.

If the person did not have a CHL, would you search the house for weapons? Would you confiscate the knives, hammers, and fireplace pokers?

Confiscating property when no crime has been committed sounds like a deprivation without due process of law.

- Jim

GrillKing · Post by **GrillKing** » Thu Nov 22, 2007 2:57 pm

srothstein wrote:I could legally keep the weapon overnight until he is sober and the argument is over. He would go to the police station the next day to retrieve it.

Under what statute?? Not trying to be a smart aleck, just want to know!!

mr surveyor · Post by **mr surveyor** » Thu Nov 22, 2007 9:37 pm

not to throw fuel on the fire, but would confiscation of the CHL's carry weapon also include a search of the rest of the house for all other handguns/long guns?

Interesting discussion.

srothstein · Post by **srothstein** » Thu Nov 22, 2007 9:38 pm

Grillking, specifically, the statue under discussion (GC 411.207) would let me disarm a CHL overnight. That was part of the reason I came up with that situation.

Jim,

The rules have been enhanced to allow cops better control over domestics, but only if the crime has actually been committed already. The change in the CCP allows me to arrest for domestic violence that did not occur in my presence or view IF there is probable cause to believe it would happen again. But the important note is that it allows while not requiring it. The only time, and I repeat ONLY time, an officer must make an arrest by law is if you violate a protective order in my presence or view. All other arrests without warrant are discretionary.

As for other weapons, or searching, or even firearms with a non-CHL, I cannot think of any law allowing me to disarm them or even take the property against their will. The few times I have done anything of this nature, it was not against a CHL and was with the consent of the owner of the weapon. In cases like that, I would point out that the one party was still afraid and especially of the weapon. If the owner did not agree, I would use that as part of my argument to convince the other person to leave the property.

Just as the law allows a police officer to disarm a CHL at a traffic stop but not an otherwise legally armed person, it would apply differently in this case. The good news is that most officers do not know it applies other than at a traffic stop and I am not telling them (unless they also read this forum).

JohnKSa · Post by **JohnKSa** » Thu Nov 22, 2007 11:27 pm

srothstein,

So would you agree that an LEO's power to confiscate a firearm are MORE limited during an emergency/disaster when SB112 applies than in the normal situation when GC 411.207 applies?

GrillKing · Post by **GrillKing** » Fri Nov 23, 2007 9:20 am

srothstein wrote:Grillking, specifically, the statue under discussion (GC 411.207) would let me disarm a CHL overnight. That was part of the reason I came up with that situation.

srothstein, thanks. After re-reading the statute, I agree. If I am a threat to myselfy, LE doesn't have to return the firearm until after I am no longer a threat. I believe intoxicated would or could be considered a threat as I would be impaired.

thanks again....

txinvestigator · Post by **txinvestigator** » Fri Nov 23, 2007 12:15 pm

Â§ 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.

The LEO can only keep the firearm IF he arrests the license holder. under THIS statute. The words are clear.

JohnKSa · Post by **JohnKSa** » Fri Nov 23, 2007 6:05 pm

411.207 gives the legal requirements that must not exist if an officer is to RETURN a gun.

The "and" in the case of 411.207 means that ALL of those conditions must NOT apply or the officer can legally RETAIN the weapon. Which means that if even one of the conditions is NOT satisfied 411.207 does not require him to return the firearm.

The misunderstanding arises because 411.207 is stated differently from SB112. SB112 says that the officer must return the firearm UNLESS (the stated conditions) DO apply, while 411.207 states that the officer must return the firearm IF (the stated conditions) DO NOT apply.

Stated in the same form as SB112, 411.207 requires that an officer return a handgun UNLESS the person is arrested, or UNLESS the person is a threat to the officer, himself or others, or UNLESS the person has committed a CHL violation under 411. It clearly allows the officer to retain the handgun in two separate cases where the detainee is NOT arrested.

GrillKing · Post by **GrillKing** » Fri Nov 23, 2007 9:13 pm

JohnKSa wrote:411.207 gives the legal requirements that must not exist if an officer is to RETURN a gun.

The "and" in the case of 411.207 means that ALL of those conditions must NOT apply or the officer can legally RETAIN the weapon. Which means that if even one of the conditions is NOT satisfied 411.207 does not require him to return the firearm.

The misunderstanding arises because 411.207 is stated differently from SB112. SB112 says that the officer must return the firearm UNLESS (the stated conditions) DO apply, while 411.207 states that the officer must return the firearm IF (the stated conditions) DO NOT apply.

Stated in the same form as SB112, 411.207 requires that an officer return a handgun UNLESS the person is arrested, or UNLESS the person is a threat to the officer, himself or others, or UNLESS the person has committed a CHL violation under 411. It clearly allows the officer to retain the handgun in two separate cases where the detainee is NOT arrested.

So in terms I would understand: if condition A and condition B, then return =true.

If either condition is not met, the gun does not have to be returned. Therefore an intoxicated person with a firearm could be perceived to be a threat to himself or others and the gun not returned until he or she sobers up, even if no arrest occurs as 1 of the 2 conditions for the return is not present.

It is clear if I read it slow!!.

Is that it in a nutshell?

JohnKSa · Post by **JohnKSa** » Fri Nov 23, 2007 9:22 pm

That's certainly how it looks to me--and it seems that srothstein reads it the same way.

If ( NOT threat AND NOT (411 violation OR arrest) ) then return = TRUE

Which is an awkward way to state it. You can use boolean algebra (actually De Morgan's Law) to simplify the expression.

If (NOT threat AND NOT 411 violation AND NOT arrest ) then return = TRUE

Or better yet complement the entire expression again using De Morgan's Law.

If (threat OR 411 violation OR arrest) then return = FALSE

I think that at the least 411.207 needs to be adjusted to remove the part about violations under 411. I don't like the idea of confiscation over a misdemeanor. Also not so keen on the idea of discretionary confiscation. The officer can just say "I determined he was a threat to (himself/me/others)" and retain the firearm.

GrillKing · Post by **GrillKing** » Fri Nov 23, 2007 9:40 pm

JohnKSa wrote:Also not so keen on the idea of discretionary confiscation. The officer can just say "I determined he was a threat to (himself/me/others)" and retain the firearm.

I agree, but I can imagine circumstances where it is the right thing to do. I spoke once with a Border Patrol officer and he said they make immigration stops, but cannot make a traffic stop. However, he also said that he wouldn't let an obviously intoxicated driver pass.

Sometimes it's right, even if it isn't exactly in conformance with the law. The problem, is who gets to make the call??? At some point it passes from completely conforming to not conforming but common sense to that shouldn't happen.

JohnKSa · Post by **JohnKSa** » Fri Nov 23, 2007 9:44 pm

My feeling is that if you aren't breaking any laws (other than perhaps minor misdemeanors) they should not take your gun. If there is truly a need to confiscate a gun, then the situation in my opinion is also severe enough to warrant arrest.

Look at SB112--if you are not arrested and there is no ongoing criminal investigation involving your gun as evidence then the officer MUST return your gun. No wishy-washy statements about misdemeanor 411 violations or the officer's guess about whether or not you're a possible threat to anyone. Pretty much if no one got shot (which might make confiscation of the gun as evidence reasonable) then if the guy walks away he walks away with his gun. But that only applies in a disaster/emergency.

The idea that an officer can say: "He's not doing anything wrong, I'm going to let him skate, but I still want to keep his gun." doesn't set well. Perhaps they need to put in a specific clause for intoxication, I don't know...

srothstein · Post by **srothstein** » Fri Nov 23, 2007 11:43 pm

JohnKSa wrote:srothstein,

So would you agree that an LEO's power to confiscate a firearm are MORE limited during an emergency/disaster when SB112 applies than in the normal situation when GC 411.207 applies?

Yes and No. Yes, the powers to disarm are much more limited during a disaster IF the call or incident relates tot he disaster. No, there is no difference in the powers to disarm if the call or incident is not related to the disaster, even if it occurs during a disaster situation.

Consider that a county gets declared a disaster area due to recent flooding. The officers working in the flooded area are going to be very restricted in their powers to disarm, and must return unless the person is arrested or the weapon is evidence.

But at the same time, there is an officer working in the county, from the exact same department, that gets a call for a family disturbance in a part that is not flooded or being evacuated. Even though he is technically working in a disaster area, it would have no bearing on the call that is for a regular family disturbance, so the new law would not apply.

Given the potential for conflict between the two laws, I am making my best guess as to how the courts would see it and cannot swear that the situation would work that way. It would seem like a reasonable application for it to be that way, though.

srothstein · Post by **srothstein** » Fri Nov 23, 2007 11:50 pm

GrillKing wrote:I agree, but I can imagine circumstances where it is the right thing to do. I spoke once with a Border Patrol officer and he said they make immigration stops, but cannot make a traffic stop. However, he also said that he wouldn't let an obviously intoxicated driver pass.

Sometimes it's right, even if it isn't exactly in conformance with the law. The problem, is who gets to make the call??? At some point it passes from completely conforming to not conforming but common sense to that shouldn't happen.

Fortunately, in most cases, there is an application of the law that allows common sense to work. In the above case, there is case law in Texas that a border patrolman may make a DWI arrest using his citizen arrest powers. Courts have upheld that a DWI is a breach of the peace that any person may arrest for if committed in their presence or view (sorry, I do not have the citation handy, but I remember reading of a case from the mid-90's on it).

Of course, you do not have the red lights and siren that the border patrol puts on their cars.