Author Topic: Open Carry Harrassment in Texas Jan 1  (Read 2657 times)

eddie70065

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Open Carry Harrassment in Texas Jan 1
« on: July 15, 2015, 01:17:02 PM »
Hello,
If I open carry in Texas after January 1 2016 and get harassed by law enforcement based solely on the premis that there is an open carrier, lets get 'em...., such as detainment, arrest, confiscation, charged with disturbing the peace etc. will my Texas Lawshield benefits protect me if I am otherwise open carrying in a law abiding manner while not violating private business rights or 30.06/30.07 or 51% signs etc?

As I read the law, I understand they can ask me for my license and ID at any time,  I will comply with that request.   Im concerned with harassment beyond this step that would cause me money and trouble.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

SideshowBob

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Re: Open Carry Harrassment in Texas Jan 1
« Reply #1 on: July 16, 2015, 03:46:44 PM »
Found this in another thread.  Seems to sum it up.

Quote from: "TexasLawShield"
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: July 16, 2015, 07:00:42 PM by SideshowBob »

6br

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Re: Open Carry Harrassment in Texas Jan 1
« Reply #2 on: July 16, 2015, 04:33:10 PM »
According to open carry Texas website open carry is not solely a reason for stopping you due one of the amendments.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

TexasLawShield

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Re: Open Carry Harrassment in Texas Jan 1
« Reply #3 on: July 17, 2015, 01:19:31 PM »
eddie70065,

Yes, TLS covers you if you are arrested while lawfully openly carrying. Though all incidences are looked at on a case-by-case basis, keep in mind that offenses not related to your firearm, such as resisting arrest, are generally not covered. It would be unlawful for an officer to further detain and/or harass you after the point at which he has confirmed you have a license to carry (unless he has independent reasonable suspicion that a crime is occurring). Were an unlawful arrest on a firearms crime to occur out of that sort of detention/harassment, that is a covered incident.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »