American Airlines Center, I have an answer

[fizteach]

Okay, I'm ready to take one for the team. I'm going to join TSRA this week and encourage them to challenge AAC. After all, the folks operating this center are doing this with my tax dollars.

Another such place is the Garland ISD Special Events Center, which is posted 30.06. This is the same issue with a different type of warning (although it is an illegal warning?).

[txinvestigator]

Okay, I'm ready to take one for the team. I'm going to join TSRA this week and encourage them to challenge AAC. After all, the folks operating this center are doing this with my tax dollars.

Another such place is the Garland ISD Special Events Center, which is posted 30.06. This is the same issue with a different type of warning (although it is an illegal warning?).

If a 30.06 sign is posted at a government owned facility it is not illegal in any manner. It is simpy a meaningless sign.

Why is the Garland ISD sign a concern? Do they have other events besides school events there, perhaps?

[frankie_the_yankee]

Okay, I'm ready to take one for the team. I'm going to join TSRA this week and encourage them to challenge AAC. After all, the folks operating this center are doing this with my tax dollars.

Feel free, but don't expect much. Actually, I doubt very much whether TSRA would take on a challenge. The chances of success are minimal, IMO.

If a private company is leasing it, they can do anything they want that would be legal if they owned it outright.

Better to just leave the gun in the car.

[txinvestigator]

Okay, I'm ready to take one for the team. I'm going to join TSRA this week and encourage them to challenge AAC. After all, the folks operating this center are doing this with my tax dollars.

If a private company is leasing it, they can do anything they want that would be legal if they owned it outright.

Thats not what the LAW says in the case of facility owned by a government.

[40FIVER]

Uh, Frankie, did you read Mr. Cotton's post about the leasee having to abide by any law governing the owner?

[fizteach]

Okay, I'm ready to take one for the team. I'm going to join TSRA this week and encourage them to challenge AAC. After all, the folks operating this center are doing this with my tax dollars.

Another such place is the Garland ISD Special Events Center, which is posted 30.06. This is the same issue with a different type of warning (although it is an illegal warning?).

If a 30.06 sign is posted at a government owned facility it is not illegal in any manner. It is simpy a meaningless sign.

Why is the Garland ISD sign a concern? Do they have other events besides school events there, perhaps?

Garland ISD rents it out to any group that can pay the money. It is used for graduations from many other school districts, sporting events, but also for concerts and conferences.

[Photoman]

Feel free, but don't expect much. Actually, I doubt very much whether TSRA would take on a challenge. The chances of success are minimal, IMO.

If a private company is leasing it, they can do anything they want that would be legal if they owned it outright.

Better to just leave the gun in the car.

Not only is this positiion ~legally~ incorrect, but I propose that it is ~morally~ incorrect also.

Given:

1. The legislature has not crafted a sane and simple CHL law;

2. Legally defending CHL codified rights through the legal appeals process is punitive and expensive;

3. CHL'ers, individually, are very reluctant to defend their legal rights;

Proposed:

1. CHL'ers should organize.

2. Said organized CHL'ers should raise funds.

3. Said organized, WELL funded CHL'ers should sue anyone that attempts to prevent the legal carry of handguns.

4. Said organized, WELL funded CHL'ers should fund public announcements or other means of communication with the goal of supporting, protecting and promoting the legal carry of handguns.

5. Said organized, WELL funded CHL'ers should lobby the legislature to craft a sane and simple CHL law.

6. Said organized, WELL funded CHL'ers should support, financially and otherwise, individuals to test the laws, relating to CHL, through the appeals process with the goal of establishing legal precident.

Concluded:

1. If CHL'ers are not willing to aggressively defend, promote and support legal concealed handgun carry, the legal option of concealed handgun carry will not be maintained.

2. If the current trend of unchecked disregard for CHL law continues by those who disagree or claim ignorance of the CHL law , CHL law will be stripped of its effectiveness.

3. Without legal precident to define the CHL law, the current law, being absurdly complicated, and with no simplification of the law from the legislature, will never be completely useful to the public.

I always wanted to be a lawyer. Not!

[srothstein]

Okay, I had to bite my tongue (well, fingers) to stop from answering early, but I did read the whole thread first. I have a few points to make and one important one I think everyone missed.

First, I do want to commend Waffenmacht for trying to get a clear answer and persuade them to be reasonable.

Second, I want to agree with the general flow of the argument that the AAC is government owned and cannot post for 30.06. I also agree that the whole section is not lawful for them to enforce.

Third, and most important, I want to point out what everyone seems to have missed. There is another section governing criminal trespass. 30.05 does apply to government property and even to CHL's. In this case, Waffenmacht would be governed by 30.05 and could have been charged with criminal trespass if he had carried in the AAC that night. Criminal Trespass (30.05) does have a section that gives CHL's a defense if they are carrying under the authority of the CHL and the sole purpose for the trespass order is they are carrying a gun. But it is just a defense to prosecution for use at trial and really will not stop an arrest (though it should since it clearly is intended to make the action legal). This means the fourth person he talked with was correct in the basics of his answer and he could be arrested.

So, this may be another minor change to fix in the laws in some future session, mush as the carrying in a car law was fixed this time. We need to get it changed to an exception (though defining it as solely do to the gun may be the tricky part).

[stevie_d_64]

Stephan...

I'm glad you brought that up...

And I am not afraid to ask this because there might be some out there who may believe this as well...

But I was under the impression that the real jeopardy to you under 30.06 and 30.05 was that a "trespass" was only applicable "after" you were asked to leave, either by the authority of the facility, or law enforcement...

That after they asked you to leave, and you refused, then those sections would come into play and you could be charged with trespass...

No skin off my back if I am wrong, I just don't see myself getting anywhere near close enough to have to experience something like this...Its just not in the deck of cards I have...

[Photoman]

So, this may be another minor change to fix in the laws in some future session, mush as the carrying in a car law was fixed this time. We need to get it changed to an exception (though defining it as solely do to the gun may be the tricky part).

1. Thank you for pointing out the 30.05 issue. It is an excellent example of the absurdity of Texas law regarding the carrying of firearms. We have one law that states we can carry and then, in the very next breath, we have another law that states we can't carry, effectively nullifying the first law. Absurd!

2. Take the spark that Gov. Perry struck after VA Tech and throw gasoline on it! All this "defense to prosecution" and "exception" legal absurdity needs to go!

[CHL/LEO]

TXI posted:

But I believe that there WOULD be an arrest

You are 100% right about that.

Here's how C.T. works in Dallas. A Dallas Police Officer first has to observe the owner, manager, or representative of the property order an individual off the property (for whatever reason). At the conclusion of that we issue that property owner (or their representative) a Criminal Trespass card that contains the name of the person that was ordered off of the property. If they don't immediately leave the premises we arrest them for C.T. If they return to the property at a later date the property owner can then present the C.T. card we gave them to any responding officer which will show that the trespasser was legally warned previously and at that time they can be arrested.

The bottom line - if you are asked to leave some one's property, you need to leave. If you don't, you will be at the minimum removed, and in most cases arrested.

Now that we've addressed C.T. in Dallas let me state that in no way does this mean that I or any officer is taking a position on whether it's legal for CHL holders to carry in the AAC. A court (or perhaps a ruling from the Texas AG) will have to decide that. Up until that time we just enforce the laws as we are directed.

For example - if some Dallas City employee called us to a city owned facility that was being operated by the City of Dallas, and complained that they thought that a certain individual was carrying a gun there, I would check it out. If said individual had a CHL and the city employee asked me to remove them because they had a gun I would inform them that there is no legal basis to do so. Trust me when I tell you that this occurred quite often after it was ruled that CHL holders had access to government buildings. To this day you can still see quite a few signs posted around City of Dallas facilities stating it's illegal for handguns (and CHL holders) to enter the premises.

Hopefully this issue surrounding the AAC (or any government owned facility that is being operated by a private entity) will get resolved soon. I also hope that it can be done with a Texas AG ruling and not by having some one arrested and taken to the Appeals Court level so that case law can be established. I wouldn't want anyone to have to go through that experience or expense.

[stevie_d_64]

Okay, I'm ready to take one for the team. I'm going to join TSRA this week and encourage them to challenge AAC. After all, the folks operating this center are doing this with my tax dollars.

If a private company is leasing it, they can do anything they want that would be legal if they owned it outright.

Thats not what the LAW says in the case of facility owned by a government.

+1

[stevie_d_64]

Here's how C.T. works in Dallas. A Dallas Police Officer first has to observe the owner, manager, or representative of the property order an individual off the property (for whatever reason). At the conclusion of that we issue that property owner (or their representative) a Criminal Trespass card that contains the name of the person that was ordered off of the property. If they don't immediately leave the premises we arrest them for C.T. If they return to the property at a later date the property owner can then present the C.T. card we gave them to any responding officer which will show that the trespasser was legally warned previously and at that time they can be arrested.

The bottom line - if you are asked to leave some one's property, you need to leave. If you don't, you will be at the minimum removed, and in most cases arrested.

Bingo, this is what I understood this all to be about...

Procedures around the state may vary, but the end result is clear...

BTW, how long is the CT card good for??? And to me that looks a lot like a Restraining Order to me...Does the CT Card need to be followed up with by a court order??? Or will the CT Card eventually expire???

I am very curious about this...

Its not like I am an idiot looking to trespass (push back the envelope) and get everyones bowels in an uproar...(No! Not Steve!)

I think this benefits everyone in our community in knowing where the line is on this issue, and what we need to be mindful of that needs to be fixed in the law...

[Charles L. Cotton]

TPC §30.05 applies to everyone, but it cannot be used to prosecute a CHL for trespass, solely because he/she had a pistol. Yes, an arrest can be made, but it could expose the person in control of the property, the officer and his department to liability in a civil action. The person in control of the property could face a civil suit for malicious prosecution and the LEO and his dept. could face a §1983 action.

TPC §30.05(f) makes it a “defense to prosecution� that the sole reason for excluding the CHL was his carrying of a handgun, but under Texas law, everything is a “defense to prosecution� unless its expressly labeled an “exception.� So even a police officer can be arrested for trespass for carrying his gun on the property. The language in TPC§30.05(g) that protects a LEO is also a “defense to prosecution� because it doesn’t say it’s an “exception.� All of the TPC §46.15 “Nonapplicability� provisions are also “defenses to prosecution� for the same reason. So a hyper-technical approach, which in my view is quite risky, would allow not only the arrest of a CHL, but also an off-duty or on-duty police officer, for UCW (TPC §46.02), thus requiring them to assert the §46.15 “defense to prosecution.�

So why aren’t LEO’s and CHL’s being arrested for UCW (TPC §46.02)? I believe there are two reasons; one practical and one legal. First the practical reason: it would be absurd to arrest someone knowing they would prevail by asserting a “defense to prosecution.� Most “defenses to prosecution� do not lend themselves to an officer’s immediate determination of their applicability to a citizen during a traffic stop or other encounter, but having a proper LEO ID or a CHL is not among them. This can be easily and quickly determined, so CHLs and LEOs aren’t being arrested for UCW. The legal reason for not making such arrests is that an arrest not made in good faith can lead to civil liability for the property owner, the LEO individually and his/her department. Ignorance of the law is a double-edged sword. Both citizens and LEO’s are charged with the knowledge of all laws (an absurd but necessary standard), so making an arrest the officer knows has no chance of a successful prosecution could lead to civil liability. (The Ohio Supreme Court has expressly held that making an arrest when the officer knew the citizen had a “defense to prosecution� to the charge was actionable.) Note, I said “could� not “would.� It would depend upon the circumstances.

In the hypothetical case of a CHL being arrested pursuant to TPC §30.05 at a public event, I find it difficult see a situation where an officer could make an arrest in good faith without asking the event promoter why the CHL is being excluded from a public place and/or a public event. (A public event is factually different from a private residence or business, though not legally different.) As soon as the promoter says “it’s because he has a gun,� then the officer immediately knows a successful prosecution against a CHL is not possible pursuant to TPC §30.05. (Obviously, the CHL could tell the officer why he was told to leave, thus putting the officer on notice.) He must then look to see if TPC §30.06 is applicable; i.e. was notice given, or in this case, is the property owned or leased by a governmental agency? In our hypothetical, it is government-owned property, so the officer knows TPC §30.06 does not apply. Choosing not to inquire why the promoter wants the CHL arrested is not an option for the LEO. He has a duty to conduct a reasonable investigation of the facts before making an arrest and failure to do so can lead to civil liability. The old adage “you can beat the rap, but you can’t beat the ride� has become significantly more risky for the officer and his department in recent years.

I fairness to all LEOs, I don’t think civil liability should or would attach to an officer’s arrest of a person, if there was any ambiguity as to the scope of any statute, including TPC §§ 30.05 or 30.06. However, I have never heard anyone argue that TPC §30.05 is ambiguous, as it applies to a CHL holder – it simply doesn’t apply. I have heard the argument that TPC §30.06 can be used by a private lessee or event promoter using government owned or leased property. There is no basis for this claim whatsoever. There is no case law so holding, nor is there anything in the legislative history of SB501 to indicate the statute means anything contrary to what is expressly stated. The language of the statute is quite clear:

It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035. (Emphasis added.)

It is the ownership or leasing of the property by a governmental entity or agency that is controlling, nothing else. If the legislature had intended to allow a private lessee to utilize TPC §30.06, then it could and would have so stated in SB501.

All this said, I agree that the statute could use some tweaking. Rather than change TPC §30.05, I think it should be made clear that the only statutory provisions that are a “defense to prosecution� or “affirmative defense� are those that are so labeled. Everything else is, or has the effect, of an “exception.�

This is a great law school exam question or classroom lecture/discussion topic, not my recommended course of action. CHL/LEO has given a good example of how this matter would likely be treated in the real world. While I'm confident in my analysis of this issue, I would never invite a client of mine to embark on this quest, unless he had already been wrongfully arrested.

Chas.

Here are the relevant TPC provisions:

(f) It is a defense to prosecution under this section that: (1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and (2) the person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category the person was carrying.

(g) This section does not apply if: (1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and (2) the actor at the time of the offense was a peace officer, including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.

(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

[txinvestigator]

Okay, I'm ready to take one for the team. I'm going to join TSRA this week and encourage them to challenge AAC. After all, the folks operating this center are doing this with my tax dollars.

Another such place is the Garland ISD Special Events Center, which is posted 30.06. This is the same issue with a different type of warning (although it is an illegal warning?).

If a 30.06 sign is posted at a government owned facility it is not illegal in any manner. It is simpy a meaningless sign.

Why is the Garland ISD sign a concern? Do they have other events besides school events there, perhaps?

Garland ISD rents it out to any group that can pay the money. It is used for graduations from many other school districts, sporting events, but also for concerts and conferences.

I see.