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tbrown wrote:

C-dub wrote:

tbrown wrote:Proven guilty by who? And of what? What's the crime if the sign is not compliant or not posted where required?

An establishment that can legally post a red 51% sign does not require a sign to be off limits. That's a fact. It is not like WalMart, that must post a 30.06 sign to be off limits. Not having a 51% sign properly displayed is a defense to prosecution. This means that if you were carrying and were arrested for it you will have to prove that the sign was not posted or not posted properly as a defense to prosecution.

If a company posts a gunbuster sign or some other sign prohibiting guns, carrying past the sign is criminal trespass. Having a CHL for the category handgun you're carrying is a defense to prosecution.

Bad info... sorry, but this is flat out incorrect.
It's only trespass if you're asked to leave, and you don't. The sign means nothing to a CHL.

C-dub,

The way the law is worded, carrying past a gunbuster sign is illegal for everyone. The law then specifies that there is a defense to prosecution if the reason for banning entry is carrying a pistol and the actor has a CHL for the pistol. This means that you can be arrested and charged for 30.05 violations for carrying past a gunbuster sign, but you will win in court when you show your CHL.

Scott,

You are incorrect on the way the law is worded. While the defense to prosecution has the effect of making the law meaningless to a CHL, it is still a technical violation to carry past it. And in any case of criminal trespass, the posting is enough to make the offense. You do not need to be asked to leave under the law. I will stipulate that this is true in normal police practice, but it is not the law. Just consider the way it would work if you were caught at night in a farmer's field when no owner was there. All the law requires is for you to cross a fence that is designed to keep animals in ro people out and the offense has been committed. A police officer could arrest you on sight in a field that has a fence around it without having a request from the owner. The law works the same way in all trespass cases, so the sign is all that is needed.

But, it is important to keep in mind the academic discussion of what the law says as opposed to how it is practiced in real life situations. In real life, you almost always have to be asked to leave while the officer is there and then still refuse.

srothstein wrote:But, it is important to keep in mind the academic discussion of what the law says as opposed to how it is practiced in real life situations. In real life, you almost always have to be asked to leave while the officer is there and then still refuse.

Another example of theory v. practice is the speed limit. In real life, one is unlikely to get a ticket for driving 67 in a 65 zone.

srothstein wrote:C-dub,

The way the law is worded, carrying past a gunbuster sign is illegal for everyone. The law then specifies that there is a defense to prosecution if the reason for banning entry is carrying a pistol and the actor has a CHL for the pistol. This means that you can be arrested and charged for 30.05 violations for carrying past a gunbuster sign, but you will win in court when you show your CHL.

Scott,

You are incorrect on the way the law is worded. While the defense to prosecution has the effect of making the law meaningless to a CHL, it is still a technical violation to carry past it. And in any case of criminal trespass, the posting is enough to make the offense. You do not need to be asked to leave under the law. I will stipulate that this is true in normal police practice, but it is not the law. Just consider the way it would work if you were caught at night in a farmer's field when no owner was there. All the law requires is for you to cross a fence that is designed to keep animals in ro people out and the offense has been committed. A police officer could arrest you on sight in a field that has a fence around it without having a request from the owner. The law works the same way in all trespass cases, so the sign is all that is needed.

But, it is important to keep in mind the academic discussion of what the law says as opposed to how it is practiced in real life situations. In real life, you almost always have to be asked to leave while the officer is there and then still refuse.

Thanks Steve.

How about the 51% dilemma? If there is no sign or improperly posted sign is it still a crime for a CHL to enter carrying a concealed weapon?

srothstei,

Then, the law has to be clarified if the law has to make a sense. If the violation has happened per law, then the law gives you a pass. It is not cool to have an arrest record when eventually the CHLer is cleared.

A better outcome is to clarify that " defense to prosecution" means and exactly is as "said section does not apply, if...."

BTW, where is the in TX criminal code, where it says a private property owner can post a gun-buster sign to deny a CHLer carrying on premises?

Beiruty wrote: BTW, where is the in TX criminal code, where it says a private property owner can post a gun-buster sign to deny a CHLer carrying on premises?

I've wondered, too, what defines non-chl notice that firearms aren't allowed.

sjfcontrol wrote:I've wondered, too, what defines non-chl notice that firearms aren't allowed.

Without a law saying otherwise,
it would be similar to notice that

outside food and drink,
smoking, or
pets (except service animals)

are prohibited or that

shoes

are required.

As far as I know, none of those are an arrestable offense. In fact they are not offenses at all.

( well maybe for the smoking...)

C-Dub,

The 51% law is written the same way. It is illegal for the CHL to carry there, but he should be found not guilty by using the defense of it is not posted.

Beiruty,

The reason the law is written this way, instead of saying something is not applicable, is to shift the burden of proof. As with all cases of self-defense, the act of trespassing is still a crime. The prosecution must prove the elements of the offense beyond a reasonable doubt. Then the defense gets a chance to prove its case, which may include the defense to the offense. But the defense must actually prove its case, such as the sign not being valid. It cannot just make the claim. And the defense has a slightly lower standard of evidence for a defense than an affirmative defense (which still seems backwards to me).

But the reason to write the laws this way is to say who must prove what before a conviction is made.

As for the gunbuster sign, it is written in section 30.05. The law says you cannot enter if you do not have the effective consent of the owner. One way the owner can tell you that he does not consent is to post a sign. There is no limit on what the sign can say or not say. So, a gunbuster circle means that no one can enter the premises with a gun. A "No shirt,no shoes, no service" sign means that you cannot enter barefoot or bare chested (though without pants may be legal). The law then provides for a defense to help you if you are a CHL with a gun. we are very lucky in Texas to have gotten 30.06 added in 1997. We are in one of the very few, if not only, states that makes the sign be that specific to bar a licensed handgun carrier. But the proof that the gunbuster is a valid ban is that this law existed as a ban between 1995 and 1997. The defense was added in 1997 also, but I do not know if there were any arrests or convictions in that two year period.

And there is no defense that I am aware of for the no shirt signs. You can be arrested for criminal trespass if you violate that sign.

Steve,
Gun buster is not a 30.06 valid sign. What has to be proven is already proven by the post of gun-buster sign and not a valid 30.06 sign. It is like that Prosecutor has proven that offense happened (+1) but defense says, What is proven does not apply since posted gun-buster is not a valid 30.06 sign (-1). Net result is 0.

So why allow arrest if net result is 0 and in the US every suspect is assumed innocent until proven otherwise.
False arrest or arrest were there is defense to prosecution should never go on the criminal records, since such arrest have very negative consequences to the innocent people.

Very interesting stuff Steve. Thanks.

srothstein wrote: And there is no defense that I am aware of for the no shirt signs. You can be arrested for criminal trespass if you violate that sign.

Seriously? As I see it, the "No Shirt, No Shoes, No Service" sign doesn't even say, "Don't come in here barefoot (or you're guilty of 30.05)", it says, "If you come in here barefoot, we won't serve you." If the management (or an officer) then tells you to leave, and you don't, THEN you've violated 30.05. But you've violated it because you've been asked to leave and didn't, not because you're barefoot and disobeyed the sign.

So are you saying that somebody can make ANY condition a violation of 30.05 by posting a sign? I can open a store with a sign "Women must wear clothing that covers their ankles." (or their face), and it would then be a 30.05 violation if any woman enters displaying those body parts? (Again, if they're ask to leave BECAUSE they've violated the sign, and don't -- that would be a violation, but disobeying the sign wouldn't be -- as I see it. Am I wrong?)

sjfcontrol wrote:(Again, if they're ask to leave BECAUSE they've violated the sign, and don't -- that would be a violation, but disobeying the sign wouldn't be -- as I see it. Am I wrong?)

Where does it say that in the law? If you're right, it should be easy to quote the law that says written notice is invalid and only oral notice counts.

snorri wrote:

sjfcontrol wrote:(Again, if they're ask to leave BECAUSE they've violated the sign, and don't -- that would be a violation, but disobeying the sign wouldn't be -- as I see it. Am I wrong?)

Where does it say that in the law? If you're right, it should be easy to quote the law that says written notice is invalid and only oral notice counts.

No, there is no definition for a sign that WOULD be notice. And I'm not claiming that "only oral notice counts". I'm saying you've been requested to leave (for whatever reason) and didn't. Make sense?

sjfcontrol wrote:No, there is no definition for a sign that WOULD be notice. And I'm not claiming that "only oral notice counts". I'm saying you've been requested to leave (for whatever reason) and didn't. Make sense?

Not really. Do you think signs count or not? (Talking about 30.05 criminal trespass.)

It looks like everyone agrees oral notice is valid notice and counts, even though the law doesn't define specific speech. In addition, it looks like some of us think posted notice is valid notice and counts, even though the law doesn't define specific signs.