Suspected Of Shoplifting While Carrying?

[TraCoun]

Under Texas law, we cannot even disclose that we have a handgun (Legislative intent - not “letter-of-the-law� stuff here) to a non-LEO.

Umm, what? Where is that law? I must have missed it.

txinvestigator:

I think that is why Charles put the comment in parentheses "Legislative intent - not "letter-of-the-law" stuff here)

Thanx,
TraCoun

[Charles L. Cotton]

Umm, what? Where is that law? I must have missed it.


Texas Government Code
§411.171. Definitions.

In this subchapter:


(3) "Concealed handgun" means a handgun, the presence of
which is not openly discernible to the ordinary observation of a
reasonable person.

If we could not even TELL someone else we are carrying surely the law would state so.

I fully agree with you! Unfortunately, one of the bills authors, Ron Wilson, has repeatedly stated publically that the House's intent was to make any type of disclosure unlawful. I was blind-sided with this information during a radio interview shortly after SB60 passed. All I could say was that the statute expressly defined failure to conceal, and that would control. Unfortunately, other legislators have also taken that position. To my knowledge, this has not been tested in court, but I wouldn't want to be the test case, with the Legislative history of this bill. Also, this interpretation would be consistent with the Legislature's goal of keeping the fact that a CHL is carrying unknown, so it would work in the prosecution's favor. Again, I don't like it one bit and I don't agree with this interpretation, but because of post-passage statements by legislators, I’ll never tell anyone I have a gun.

Regards,
Chas.

[gigag04]

Can you not say whatever you want though???

We heard stories about people talking people down during our class that involved a disclosure.

In one story a CHL accidently cut off another vehicle. The driver got mad and forced the CHL off the road. The guy got out of his vehicle and walked angril towards the CHL.

CHL stuck his head out the window and said:

"Hey -- you have a gun?"

guy stops in his tracks (one of the goals of de-escalation) - says no

CHL says "well I do you crazy SOB get back in your truck and get outta here!"

Not sure how this fits, but I think that would be disclosure. We were taught that legally you can say whatever you want. Esp during de-escalation. Maybe I heard wrong.

-nick

[txinvestigator]

Umm, what? Where is that law? I must have missed it.


Texas Government Code
§411.171. Definitions.

In this subchapter:


(3) "Concealed handgun" means a handgun, the presence of
which is not openly discernible to the ordinary observation of a
reasonable person.

If we could not even TELL someone else we are carrying surely the law would state so.

I fully agree with you! Unfortunately, one of the bills authors, Ron Wilson, has repeatedly stated publically that the House's intent was to make any type of disclosure unlawful. I was blind-sided with this information during a radio interview shortly after SB60 passed. All I could say was that the statute expressly defined failure to conceal, and that would control. Unfortunately, other legislators have also taken that position. To my knowledge, this has not been tested in court, but I wouldn't want to be the test case, with the Legislative history of this bill. Also, this interpretation would be consistent with the Legislature's goal of keeping the fact that a CHL is carrying unknown, so it would work in the prosecution's favor. Again, I don't like it one bit and I don't agree with this interpretation, but because of post-passage statements by legislators, I’ll never tell anyone I have a gun.

Regards,
Chas.

Thanks for the response Charles. I don't generally base my tactics on what the law could mean, and I don't disclose to many people that I am carrying just from a tactical POV.

However, I think I could beat a charge of "telling someone you were carrying a gun" and I am not afraid to go there. ;)

[KBCraig]

Can you not say whatever you want though???

We heard stories about people talking people down during our class that involved a disclosure.

In one story a CHL accidently cut off another vehicle. The driver got mad and forced the CHL off the road. The guy got out of his vehicle and walked angril towards the CHL.

CHL stuck his head out the window and said:

"Hey -- you have a gun?"

guy stops in his tracks (one of the goals of de-escalation) - says no

CHL says "well I do you crazy SOB get back in your truck and get outta here!"

Response to a perceived threat is very different from our "shoplifting" scenario. (Unless the security guard tried to lay hands on/forcibly remove the "bump"; that would be an assault, a battery, and a threat to everyone's safety.)

In your truck wreck scenario, assuming the Angry Guy is bigger, stronger, younger, in a visible rage, etc., then our smaller/fatter/older/calmer CHL would be justified in preparing for the apparent conflict. Depending on the distance and severity of the threat, the CHL might be justified in using your class example as a response; or assuming a defensive stance, hand on pistol, prepared to draw; all the way up to drawing and aiming if verbal warnings didn't work.

You don't have to wait until the other guy carries out his threat, only until he has the apparent means, intent, and ability to do so, and such attack is imminent.

Kevin

[gigag04]

Can you not say whatever you want though???

We heard stories about people talking people down during our class that involved a disclosure.

In one story a CHL accidently cut off another vehicle. The driver got mad and forced the CHL off the road. The guy got out of his vehicle and walked angril towards the CHL.

CHL stuck his head out the window and said:

"Hey -- you have a gun?"

guy stops in his tracks (one of the goals of de-escalation) - says no

CHL says "well I do you crazy SOB get back in your truck and get outta here!"

Response to a perceived threat is very different from our "shoplifting" scenario. (Unless the security guard tried to lay hands on/forcibly remove the "bump"; that would be an assault, a battery, and a threat to everyone's safety.)

In your truck wreck scenario, assuming the Angry Guy is bigger, stronger, younger, in a visible rage, etc., then our smaller/fatter/older/calmer CHL would be justified in preparing for the apparent conflict. Depending on the distance and severity of the threat, the CHL might be justified in using your class example as a response; or assuming a defensive stance, hand on pistol, prepared to draw; all the way up to drawing and aiming if verbal warnings didn't work.

You don't have to wait until the other guy carries out his threat, only until he has the apparent means, intent, and ability to do so, and such attack is imminent.

Kevin

Ok yeah i follow. So it is a "justifiable" disclosure...much like drawing or other justifiable (possibly) means of defense.

Thanks for the reply!

-nick

[Charles L. Cotton]

Thanks for the response Charles. I don't generally base my tactics on what the law could mean, and I don't disclose to many people that I am carrying just from a tactical POV.

Again I agree. My concern is two fold. First, one of SB60's co-authors has said that Legislative intent was to prohibit verbal disclosure that you have a handgun and others in the Legislature have agreed.

Secondly, as we've discussed in other threads, the Penal Code expressly rejects the centuries old legal doctrine that penal codes must be strictly construed so as to make sure that prohibited conduct is clearly disclosed. Here is the Penal Code provision:

§ 1.05. CONSTRUCTION OF CODE. (a) The rule that a
penal statute is to be strictly construed does not apply to this
code. The provisions of this code shall be construed according to
the fair import of their terms, to promote justice and effect the
objectives of the code.

I hate to say this because it's certainly not my opinion or belief, but I'll play the devil's advocate for a moment. It is clear the Legislature doesn't want anyone knowing we have a handgun; thus the concealment requirement. Why then would it be okay for us to say "I'm wearing a handgun, but you'll have to trust me, because I can't show it to you." If the goal of the Code is to keep secret the fact that we are carrying, then prohibition of verbal disclosure is consistent with this goal. Relying upon §1.05(a) and Legislative intent, a prosecutor could then argue that verbal disclosure is prohibited.

Had it not been for certain Legislators saying the Legislative intent was to prevent verbal disclosure, then I wouldn't have given this a second thought. As I said earlier, I even opined during a radio interview in 1995 that verbal disclosure was not prohibited. I just cannot in good conscience give that opinion any longer. That is still my belief, but I don't want anyone going to jail and having to fight this, "because Cotton told me it was okay."

Folks, please remember this discussion deals solely with voluntary verbal disclosure that is not in response to justifiable display of the gun. Penal Code Section 46.035(h) allows a CHL to display a handgun, if the use of deadly force would be justified. In other words, if you can legally shoot, then you can pull your gun but don't have to shoot. What Wilson and others contend is that "if you can't pull it, then you can't talk about it either. I do not believe this to be the case, as this was never mentioned at any time during the planning, drafting, amending or public hearings on SB60. Unfortunately, off-the-cuff comments made at a time when the media had the public barring their doors in fear of mass-murdering new CHL's have clouded what I believe was once crystal clear.

Not that it matters but my belief, based upon my involvement with SB60, is that the true intent was to prevent the general public from being concerned or frightened at the sight of handguns being carried by CHL’s; nothing more. If I knew someone well enough to talk about having a handgun on me, or if another situation arose that would make non-threatening voluntary disclosure reasonable, such as in the shoplifting scenario, then I do not believe the Legislature intended to prevent verbal disclosure.

Txinvestigator, thanks for bringing this up. (That’s why I put the parenthetical phrase in the initial post: “Legislative intent - not “letter-of-the-law stuff here.�)

Regards,
Chas.

[stevie_d_64]

Can you not say whatever you want though???

We heard stories about people talking people down during our class that involved a disclosure.

In one story a CHL accidently cut off another vehicle. The driver got mad and forced the CHL off the road. The guy got out of his vehicle and walked angril towards the CHL.

CHL stuck his head out the window and said:

"Hey -- you have a gun?"

guy stops in his tracks (one of the goals of de-escalation) - says no

CHL says "well I do you crazy SOB get back in your truck and get outta here!"

Response to a perceived threat is very different from our "shoplifting" scenario. (Unless the security guard tried to lay hands on/forcibly remove the "bump"; that would be an assault, a battery, and a threat to everyone's safety.)

In your truck wreck scenario, assuming the Angry Guy is bigger, stronger, younger, in a visible rage, etc., then our smaller/fatter/older/calmer CHL would be justified in preparing for the apparent conflict. Depending on the distance and severity of the threat, the CHL might be justified in using your class example as a response; or assuming a defensive stance, hand on pistol, prepared to draw; all the way up to drawing and aiming if verbal warnings didn't work.

You don't have to wait until the other guy carries out his threat, only until he has the apparent means, intent, and ability to do so, and such attack is imminent.

Kevin

Ok yeah i follow. So it is a "justifiable" disclosure...much like drawing or other justifiable (possibly) means of defense.

Thanks for the reply!

-nick

Hang on nah...This is an interesting situation...

If the act of cutting off someone causes them (the receiver of the "cutting off") to get angry, and "forces" the other car "off the road"...And then they "angrily" get out of their car and "aggressively" confront the "cutter offer person"...That person does not get out of their car, but politely asks the "angry" person if they have a gun? And then, regardless if the angry person has a gun or not, the "cutter offer person" informs the "angry" person that they do (regardless if its true or not), is that not difusing the confrontation, without firing a shot???

Seems like its a win-win situation for everyone involved...

Angry person should be glad they can live to tell the tale, if they feel so inclined to open themselves up for extreme ridicule, and be told they are lucky to be alive...

I guess I am just to simple minded to explore anything beyond what I have already heard on this...

I also guess I am correct to assume that Texas right-of-ways (roads) should not be proving grounds for testing one's manhood, or womanhood for that matter...

[txinvestigator]

Again I agree. My concern is two fold. First, one of SB60's co-authors has said that Legislative intent was to prohibit verbal disclosure that you have a handgun and others in the Legislature have agreed.

Secondly, as we've discussed in other threads, the Penal Code expressly rejects the centuries old legal doctrine that penal codes must be strictly construed so as to make sure that prohibited conduct is clearly disclosed. Here is the Penal Code provision:

§ 1.05. CONSTRUCTION OF CODE. (a) The rule that a
penal statute is to be strictly construed does not apply to this
code. The provisions of this code shall be construed according to
the fair import of their terms, to promote justice and effect the
objectives of the code.

I hate to say this because it's certainly not my opinion or belief, but I'll play the devil's advocate for a moment. It is clear the Legislature doesn't want anyone knowing we have a handgun; thus the concealment requirement.

I don't claim to know anything about legislative intent, at all. But DPS is not teaching that, and I don't know of one instructor who is teaching that.

Since I, nor any other normal citizen (not to imply that you are not normal ;) ) have any way of knowing what the legislative intent was, we have to use common sense when going about our lives being law-abiding citizens. I read the law and apply common sense and caution when deciding how it effects me.

The law must be changed to reflect the wording that we cannot disclose the fact that we are carrying, and all CHL instructors should be advised so we can teach properly.

I have only heard 1 other person make the statement that CHL holders are not allowed to disclose the fact that we are carrying, and I bet that person heard it from you. I realize that ignorance of the law is no defense; however, citizens cannot be expected to read the minds of our legislators. This is far from being vague, it is simply unrealistic.

And I am not trying to argue with you, as I believe you, I am just explaining my thoughts.

[Charles L. Cotton]

But DPS is not teaching that, and I don't know of one instructor who is teaching that.

That's very interesting and encouraging. It would also be an excellent defense to a charge of intentional failure to conceal. How could you engage in intentional conduct you were never told was unlawful, by an instructor trained by DPS?

I may well change my position on this issue, especially since I want to. But seriously, DPS is charged with the responsibility of creating the CHL course. If DPS isn't teaching verbal disclosure violates 46.035(a) and it's not in the DPS handbook for CHL's, then this issue is on a different foundation than the general "ignorance of the law is no excuse." DPS has been charged by the legislature with the responsibility to educate CHL’s concerning Texas law related to “carrying,� and CHL's have a right to rely upon what they are taught. Couple this with 10 years of DPS teaching this way and there is every reason to believe that informal comments by legislators regarding verbal disclosure under 46.035(a) were without merit.

I'm convinced; sorry for "thinking out loud" so to speak. I'm going to check for some cases, but I'm sure they don't exist, as far as "verbal disclosure" is concerned.

Regards,
Chas.

[jimlongley]

Just to stir the pot even more vigorously, consider that in TX a private security person would be restricted in what they can and cannot do and there are different levels of restriction for commissioned and non-commissioned officers.

It's been a long time since I took the courses, but I believe we were told that, if we were going to "detain" someone, we had better be pretty sure of our ground and be up to the level of a "citizens' arrest" or we could lose our license/commission.

Basically a non-commissioned officer is there to show presence, make observations, and take careful notes.

A commissioned officer can resort to force in situations where force would be warranted under the "reasonable person" rule, up to and including deadly force.

The TCPS web site is less than helpful in defining these things.

OTOH, if the person stopping you is a store employee, then a whole different set of factors is involved, most of which have been discussed here already.

[Paladin]

However, places like Fryes Electronics, Walmart, etc, who check every person can do so IF the persons stop and LET them. If you keep walking they do not have legal authority to stop you. Once you pay for that property it is YOURS. You do not have to show someone at the door your receipt unless they have reasonable grounds based on the above 2 statutes.

Thats why my wife hates shopping at Fryes with me. I refuse to stop.

I always carry at Frys. I remember one time a security guy at the door was giving me a look like he wanted to search me (I had no store bags) and I gave him back a look like "DON'T EVEN THINK ABOUT IT!" He let me pass.

[Charles L. Cotton]

Okay, here's a quick update on the case law search. I've found only two cases dealing with Penal Code §46.035(a), neither of which dealt with verbal disclosure of a handgun. These two cases dealt with a complainant seeing a handgun that was intentionally displayed. (One defendant said he intentionally pulled the pistol out of his pocket during an argument, but he didn’t intend the woman to see it. Yeah, right!) Both defendants were convicted and their convictions were upheld on appeal.

A word of warning about case law. Unlike federal court, District Courts in Texas do not issue opinions; only appellate level courts do so. Therefore, while I was able to find only two cases dealing with Penal Code §46.035(a), there could be many such cases filed and tried in district courts throughout the State. If no appeal is filed, the case does not get reported and thus does not become part of case law on the issue.

One of the cases was quite interesting and although the defendant exhibited poor judgment, in my opinion, I could envision someone getting themselves into trouble under similar circumstances. I’ll post the case under a new thread.

So, I will no longer teach that verbal disclosure violates 46.035(a). In the spirit of full disclosure, I will point out the history of this issue, but I am convinced txinvestigator is correct.

Regards,
Chas.

[KBCraig]

This whole discussion brings to mind the need to practice retention drills. My duty holster has both active and passive retention (trust me... if you don't know the trick, you're not getting the gun!)

My Fobus paddle has good passive retention, requiring a forceful draw in a straight line to overcome the "pinch".

My preferred concealed holster is a Don Hume slide. It's well fitted, but can't be said to have even passive retention. But still, I'm not worried about accidentally losing the gun. Just the other day at Sam's, I played with an "inversion table", where your ankles lock in and you hang head-down. I lost my cell phone out of my shirt pocket, but I didn't have to worry about my gun. :D

Retention techniques are too varied and complex to go into here, but I'd suggest that everyone get some training. There's nothing like hands-on practice.

Kevin

[txinvestigator]

Just to stir the pot even more vigorously, consider that in TX a private security person would be restricted in what they can and cannot do and there are different levels of restriction for commissioned and non-commissioned officers.

It's been a long time since I took the courses, but I believe we were told that, if we were going to "detain" someone, we had better be pretty sure of our ground and be up to the level of a "citizens' arrest" or we could lose our license/commission.

Basically a non-commissioned officer is there to show presence, make observations, and take careful notes.

A commissioned officer can resort to force in situations where force would be warranted under the "reasonable person" rule, up to and including deadly force.

The TCPS web site is less than helpful in defining these things.

OTOH, if the person stopping you is a store employee, then a whole different set of factors is involved, most of which have been discussed here already.

I am a Private Security Instructor also. You are correct in that ANY person can make an arrest to prevent the consequences of theft. That includes using force. But the person must meet the requirements I set out in my earlier post.