Author Topic: Will TLS defend members' 4th amendment rights?  (Read 4901 times)

stealth

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Will TLS defend members' 4th amendment rights?
« on: June 03, 2015, 05:41:20 PM »
In a recent video Edwin Walker states, essentially, that Texas will be stop-and-ID on demand once open carry legislation takes effect. I believe this is absolutely false. https://www.youtube.com/watch?v=dSFEfiCvFl0

Edwin does not state what statute one would be in violation of by refusing to identify themselves or display their CHL on demand, when the demand is made solely as a result of the observation that the person is OCing a handgun.

If this is the opinion of TLS then I will have no choice but to drop my membership, as that membership would be of no value if I would not be defended for merely exercising my Constitutionally protected liberties. For TLS to pretend that OCing where legal (EVEN IF a license is required!) is RAS or PC, and more importantly for them to pretend that Section 9, Article 1 of the Texas Constitution does not state "The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation." would be unacceptable.

Please clarify Edwin's comments and if it is the opinion of TLS that one would be in violation of the law by refusing to display their CHL on demand, when the demand is made solely as a result of the observation that the person is OCing a handgun, please cite the statute that the individual would be in violation of.

Edit: I guess the real question is, after Jan 1st, if I am stopped by an officer and they demand to see identification, solely because I am OCing, and if I refuse to provide them with identification, will TLS refuse coverage (bond, representation, etc. per membership)?
« Last Edit: June 03, 2015, 10:19:20 PM by stealth »

Neighbor

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Re: Will TLS defend members' 4th amendment rights?
« Reply #1 on: June 03, 2015, 09:32:07 PM »
Only "stop-and-ID on demand" if you choose to open carry I guess. I'm thinking once the initial "new" wears off, most LEO's  won't be stopping and checking unless someone's actions, other than carrying a gun, draw specific attention or concern. I guess this is another reason open carry isn't of much interest to me - I'm not one to draw attention to myself.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

stealth

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Re: Will TLS defend members' 4th amendment rights?
« Reply #2 on: June 04, 2015, 06:35:51 AM »
I avoid attention and confrontation as well, which is one reason I would like to have a TLS membership and have them represent me in a case where I'm prosecuted and/or persecuted for refusing to forfeit my 4th amendment rights.

If TLS will refuse to cover someone in Texas, post Jan 1, that refuses to ID on demand and is subsequently arrested, then their membership is not of value to me. I have no intention of forfeiting my rights, and the purpose of having TLS at all is to have protection of those rights.

It looks as though the 75th Legislature re-established the non-applicability section after it was rewritten as defenses to prosecution prior the 75th. "The bill summary House Bill 311 amends the Penal Code to return the longstanding exceptions to the unlawful carrying of weapons statute to their previous status as circumstances to which the definition of the offense does not apply. During the 1993 rewrite of the Penal Code, the exceptions were changed from nonapplicable circumstances to defenses to prosecution." Emphasis mine. So, it would seem to me that to treat that section as merely a defense might be improper. But hey, what do I know? That's why I'm asking the lawyers. But most importantly I'd like to know if someone will be covered/defended.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

TexasLawShield

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Re: Will TLS defend members' 4th amendment rights?
« Reply #3 on: June 04, 2015, 05:30:31 PM »
In Texas, a police officer's observation of a person carrying a handgun, illegal knife, or club, is enough for that officer to believe the person is violating Texas Penal Code 46.02. The burden then shifts to the person carrying the handgun to demonstrate to the officer that he is protected by Texas Penal Code 46.15(b)(6) and is exempt from 46.02 by carrying his handgun license. Texas law generally prohibits carrying a handgun for which there are several exceptions or defenses (Texas Law treats them the same for procedural and evidentiary purposes), it's not the other way around. If Texas law generally allowed the carrying of handguns (like it does for long guns) and only criminalized it for selected groups (like felons) then you would be right in that the police could not stop a person unless they had reasonable suspicion that the person was prohibited from carrying a handgun.
If a police officer observes a person carrying a handgun (whether open or concealed) the only way he is going to know that the person is not illegally carrying a handgun in violation of Texas Penal Code 46.02 is for that person to demonstrate that he is also carrying his handgun license in compliance with Texas Penal Code 46.15(b)(6). It's not about producing identification, it's about proving that 46.02 doesn't apply to the person carrying. It just happens to involve producing an identification card known as the handgun license.
This rule does not apply to long guns.  In Texas when a person is openly carrying a rifle or shotgun, they are not violating Texas Penal Code 46.02 and therefore they are not required to identify themselves. However, when a person is carrying a handgun, whether concealed or open after January 1, 2016, the police have probable cause to believe that they are committing a crime until it is demonstrated that the handgun carrier is covered by the protections of Texas Penal Code 46.15(b)(6) by showing that they are in possession of their handgun license. In fact, unless the person is in actual, physical possession of their license, they DO NOT get the protection afforded by Texas Penal Code 46.15(b)(6).
The interaction between the crime set forth in 46.02 and the non-applicability circumstances of 46.15 with regard to a police officer’s ability to have probable cause was very succinctly stated by a U.S. District Court in Houston in a case involving a man who asserted that the police did not have probable cause to arrest him because he was carrying a handgun while traveling (which is also a non-applicable circumstance under 46.15).  The judge wrote: “Probable cause exists when law enforcement officers have, at the moment the arrest is made, knowledge of reasonably trustworthy facts and circumstances to warrant a belief by a prudent person that an offense has been or is being committed.  That certain defenses or exceptions might ultimately apply to shield the arrestee from criminal liability does not negate an officer’s reasonable belief that an offense is being committed.  Thus, when officers found Defendant with a handgun in his waistband, they reasonably believed that he was committing the offense of unlawfully carrying a weapon, and probable cause existed for his arrest.”
Please read Texas Penal Code 46.02, it is a crime to carry a handgun in Texas. If you are then accused of committing this crime but feel that it does not apply to you (having a license is just one of several excuses) then YOU have to make the police aware of that.  There is no law, Constitutional or otherwise, that requires the police to assume that a person carrying a handgun is exempt from 46.02.  The opposite is true.  The wording of 46.02 allows the police to reasonably believe that criminal activity is occurring.  That is why the Dutton/Huffines amendment was so very necessary. It would have codified a legal standard of reasonable suspicion with regard to carrying a handgun in a shoulder or belt holster that is not currently present in the law.
If you are thinking, “But what about my 4th Amendment Rights?! What about my right to privacy against government intrusion?” - We are on the exact same page. Unfortunately, Fourth Amendment jurisprudence and the wording of the Texas Penal Code, allow the police to stop a person they see open carrying and verify that the person is also carrying their handgun license.  If any Texas Law Shield member is arrested and prosecuted for the crime of unlawfully carrying a handgun while they were in possession of their valid Texas or other state's recognized handgun license, Texas Law Shield will be there to defend them.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

stealth

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Re: Will TLS defend members' 4th amendment rights?
« Reply #4 on: June 04, 2015, 07:31:16 PM »
Interesting that they cite a case in which the supreme court ruled probable cause was not established to argue that in their case probable cause was established.

"Probable cause exists when law enforcement officers have, at the moment the arrest is made, knowledge of reasonably trustworthy facts and circumstances to warrant a belief by a prudent person that an offense has been or is being committed. Beck v. Ohio, 379 U.S. 89, 91 (1964)."

Wouldn't the fact that licensed OC is taking effect actually affect what may be considered reasonable warranting a belief that an offense is being committed? It makes sense to me that, since we currently do not see many individuals openly carrying handguns in violation of PC 46.02, that after Jan 1, it would be most reasonable to believe that someone openly carrying a handgun is licensed to do so, rather than not. The court's opinion does not seem to me to state that in every case it is, and is to be, presumed that one is not covered under the non-applicability section, only that in that particular case it was reasonable to believe that individual was not. But, I'm not a lawyer.

It would also seem that the legislature didn't accomplish what they wanted by restoring the non-applicability section.

Regardless, thanks for the reply. Thanks for the reply, it is helpful.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

TexasLawShield

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Re: Will TLS defend members' 4th amendment rights?
« Reply #5 on: June 05, 2015, 09:07:13 AM »
The general rule in Texas is this:  Carrying a handgun while not on your own property or in your motor vehicle or watercraft is illegal.  There are several very specific exceptions to the rule:  Police officers, security guards, military personnel on official duty, hunting, traveling, historical reenactors, and handgun license holders.  The police do not need to negate every possible exception before inquiring as to whether or not a person who is observed violating the general rule is in fact committing a crime.  Further, in the absence of a police officer actually seeing that a person is carrying their handgun license, it is impossible for him to tell whether or not that person is actually in compliance with the exception.  In other words, the default position is that a person observed carrying a handgun IS committing a crime and that it is their burden to show that they are not.  This is the opposite of other states where openly carrying a handgun IS NOT a crime.  In those states the default position is that a person observed carrying a handgun is not committing a crime and not subject to a reasonable suspicion or probable cause stop.
The only way that this can be fixed is for the Texas Legislature to alter the language of Texas Penal Code 46.02, or by establishing a codified level of reasonable suspicion such as the Dutton/Huffines amendment.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

spearofthor

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Re: Will TLS defend members' 4th amendment rights?
« Reply #6 on: June 15, 2015, 03:39:47 PM »
Just to be clear, if stopped by a LEO while committing no crime and open carrying after Jan 1 2016, if I refuse to show my CHL (and possess it) exercising my 4th amendment rights, will TLS defend me?
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

Neighbor

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Re: Will TLS defend members' 4th amendment rights?
« Reply #7 on: June 16, 2015, 06:18:36 PM »
As I understand the Texas Law Shield explanation, the way current Texas law is written LEO have no way of knowing you are not breaking the law until you produce your license since the "default" law is that it is illegal to carry a handgun. Although I do understand the potential for abuse of the law, I also understand why under current Texas law that LEO would be reluctant to give up their ability to "check out" folks with a gun if something doesn't seem right. I consider it similar to producing a driver license when you want to rent a car to prove you are legal to operate the vehicle. Hopefully open carry will work in Texas like it does in so many other states but I don't think refusing to produce your license will help the cause and I probably would prefer Texas Law Shield used my money defending 2nd amendment rights.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

switch

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Re: Will TLS defend members' 4th amendment rights?
« Reply #8 on: June 21, 2015, 11:12:06 AM »
TLS said they will defend you - period.

However, likely they will not have to.  If you are arrested, you have to give the LEO your name.  When they run it, they will find you have a CHL.  IE. You can legally OC.

Want to sue them for violating your 4th amendment rights?  Violating your civil rights?  Rots of ruck.  The state/LEO has a lot of immunity from those types of suits.

Bottom line, if you are stopped, with any luck, you will pull 3 or more LEO off the streets to hassle you.  Maybe even get a Sergeant/supervisor involved.  When you get tired of playing w/them, give them your HL and leave. :)
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

Neighbor

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Re: Will TLS defend members' 4th amendment rights?
« Reply #9 on: June 22, 2015, 09:04:58 PM »
[/cWhen they run it, they will find you have a CHL. IE. You can legally OC. }    Not if I understand the law right - you have to have the license with you and since you refuse to show it, as far as they know you don't have it on you and therefore are not legal - right?
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

stealth

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Re: Will TLS defend members' 4th amendment rights?
« Reply #10 on: July 02, 2015, 06:41:49 PM »
Quote from: "TexasLawShield"
The general rule in Texas is this:  Carrying a handgun while not on your own property or in your motor vehicle or watercraft is illegal.  There are several very specific exceptions to the rule:  Police officers, security guards, military personnel on official duty, hunting, traveling, historical reenactors, and handgun license holders.  The police do not need to negate every possible exception before inquiring as to whether or not a person who is observed violating the general rule is in fact committing a crime.  Further, in the absence of a police officer actually seeing that a person is carrying their handgun license, it is impossible for him to tell whether or not that person is actually in compliance with the exception.  In other words, the default position is that a person observed carrying a handgun IS committing a crime and that it is their burden to show that they are not.  This is the opposite of other states where openly carrying a handgun IS NOT a crime.  In those states the default position is that a person observed carrying a handgun is not committing a crime and not subject to a reasonable suspicion or probable cause stop.
The only way that this can be fixed is for the Texas Legislature to alter the language of Texas Penal Code 46.02, or by establishing a codified level of reasonable suspicion such as the Dutton/Huffines amendment.
Could the situation also be rectified by showing and arguing in court how the judge in the noted case obviously erred*, or has that judge effectively legislated from the bench such that nothing but legislation from the capitol can undo his damage?

*He treats the non-applicability section as defenses to prosecution even though it seems apparent to this non-lawyer that the legislature intended for it to be more than mere defenses to prosecution, since they restored the non-applicability section after apparently moving it and labeling it defenses (I haven't done a side-by-side comparison, or anything quite so extensive, but that's what I've gathered). I'd also be curious if TLS has found any cases where the non-applicability section was used in court by any government officials or the like that are covered under the section. In other words, I'd be curious to know if any judges are ruling one way about the section when it applies to someone other than us mere citizens and then ruling another way when it applies to someone they favor more. I'm guessing the legislature restored the non-applicability section for a reason, I think it was even emergency legislation. I'd be real curious what that reason was and whether or not it could be used to challenge this atrocious ruling.

Also not sure how someone could confuse this to not be a 2a related issue... Your rights protected under the second amendment are your rights to keep and bear arms (in addition to your rights relating to a well regulated militia) and anything that affects your ability to engage in that activity freely is affecting those rights. This isn't just a 4a issue as if it must be categorized under one or the other.

Edit: FYI not necessarily looking for a response from TLS on this. Feel free to, or not. :)

Edit again:
Here's some analysis from the bill that I think I referred to earlier about the non-applicability section being "restored" with emphasis added by myself.

"Currently, Section 46.02 of the Penal Code states that going with a
handgun, illegal knife, or club onto certain premises is  a Class A
misdemeanor, and the long-recognized exceptions to the section are termed
defenses to prosecution.  This legislation would return the statute to
pre-1993 status by reinstating the "non-applicable" language and providing
exceptions to the offense of unlawful carrying a weapon, rather than
making the same circumstances an affirmative defense to prosecution.
H.B.
311 would also broaden the meaning of the offense of unlawful carrying a
weapon to include a person who possesses a firearm, illegal knife, club or
prohibited weapon on certain premises."

From the Enrolled Bill Summary, again emphasis mine: "House Bill 311 amends the Penal Code to return the longstanding exceptions to the unlawful carrying of weapons statute to their previous status as circumstances to which the definition of the offense does not apply. During the 1993 rewrite of the Penal Code, the exceptions were changed from nonapplicable circumstances to defenses to prosecution."

This part is especially golden, must emphasis this whole sentence: "This could help prevent
erroneous arrests of persons who are legally carrying a weapon and avoid
making them prove that they were not breaking the law.
"
« Last Edit: July 04, 2015, 03:52:57 PM by stealth »

switch

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Re: Will TLS defend members' 4th amendment rights?
« Reply #11 on: July 03, 2015, 03:31:37 PM »
Well, when they arrest you and inventory your wallet, they will find it.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

bilgerat57

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Re: Will TLS defend members' 4th amendment rights?
« Reply #12 on: July 13, 2015, 02:07:30 PM »
As a CHL holder, and given the current language of the applicable statutes, I will operate on the belief that if I choose to OC I should be prepared to produce ID upon request by LEO. Hopefully the statute wording will be amended soon to remove that.......precaution. Going to OC in this state may prove to be a bit......rocky...for a time until the provisions are fully known. There are still a large number of officers who believe/are told that carrying a loaded long gun is illegal, so it may take some time for the knowledge to become widespread.  I consider the OC provision as protection against printing or inadvertent flashing more than a practical alternative. I won't debate the merits of OC vs CC, to each their own.......  I would encourage my fellow members to consider carefully before acting in a fashion which could 'construct' a situation requiring legal intervention. I choose to believe that most LEO's will use a modicum of discretion in their ID demands, simply because each 'contact' will require more paperwork on their part. I'm not suggesting that anyone surrender their rights, just practice a bit of patience until the "bugs" are worked out of the system. ;)
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »