Author Topic: Follow up question on OC, IDing, failure to ID  (Read 3864 times)

stealth

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Follow up question on OC, IDing, failure to ID
« on: August 21, 2015, 05:55:12 PM »
TLS said "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." regarding question on OCing and refusing to stop-and-ID.

If a person is stopped, while OCing, asked to ID or show CHL, refuses, and then is arrested and prosecuted for some other crime, such as "failure to ID", will they likewise be defended?

Just want to get this clarified ;)
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

TexasLawShield

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Re: Follow up question on OC, IDing, failure to ID
« Reply #1 on: August 27, 2015, 04:22:35 PM »
stealth,

Failure to Identify is not a weapons crime and the incident described in your question is not a covered event under the TLS contract.  TLS has underwritten the defense for some members who have been charged with this crime arising out of a detention based upon the open carrying of a long gun.  The crime of failure to identify can only occur after a lawful arrest, and carrying a rifle is not an arrestable offense.  

However, openly carrying a handgun is a horse of a different color.  If a police officer observes a person carrying a handgun and is investigating the person for a violation of Texas Penal Code 46.02, (the statute that makes it illegal to carry a handgun while not on their property, in their car or in their boat) and that person fails to demonstrate that they are in compliance with the exception in Texas Penal Code 46.15(b)(6) in that they are not in possession of their handgun license while carrying a handgun, then they are not in a place where they can lawfully have a handgun.   Therefore this person has no justification that provides a possible defense to the charge.  If they are arrested for violating Texas Penal Code 46.02 and refuse to provide an ID, then they could possibly be charged with failure to ID.  While not technically covered under the TLS contract, members are urged to utilize the emergency hotline and contact TLS reach the independent program attorneys for further advice.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

stealth

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Re: Follow up question on OC, IDing, failure to ID
« Reply #2 on: August 28, 2015, 07:07:58 PM »
If a person will not be defended in the circumstances I described (which is significantly different than the scenario you laid out, it is worth noting), then your coverage is too narrow to be of any use to any person that chooses to open carry. Law enforcement officers and officials in Texas have demonstrated that they will arrest people they personally disagree with for open carry, but charge them with an offense that is generally unrelated to the open carry. When members are denied coverage solely because the CHARGE is unrelated to weapons, even though the activity for which the police have charged them IS related, your coverage is a sham. In other words, a nefarious officer may easily circumvent a member from being defended by TLS simply by charging the member with a technically non-applicable offense, like Failure to Identify.

I noticed that your member login area on the website, while it provides plenty of ways to "increase coverage" (though there is obviously no option to be protected while openly carrying), offers no way to decrease the level of or cancel membership. What is the easiest way to cancel my membership? Written method is preferred.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

switch

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Re: Follow up question on OC, IDing, failure to ID
« Reply #3 on: August 30, 2015, 01:15:22 PM »
Let me see is I understand your question/objection.
If you are OC and get queried by a LEO, you plan to refuse to show ID?  And you think TLS show defend you?
The law clearly says 'if you are carrying and you are asked for any ID you HAVE to display your CHL'.  Why do you think you can disobey this law?


I know, we should not have to have a CHL.  I know, the LEO should not stop anyone just because they are OC. (We almost got that in the law - but the legislature took it out.)

I suspect we might have a problem w/a few LEO in Jan.  I assume, after it all settles down it will become a non-issue.  If it continues, we'll have to address it during the next legislative session.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

stealth

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Re: Follow up question on OC, IDing, failure to ID
« Reply #4 on: August 31, 2015, 08:04:37 AM »
Sorry switch, you do not understand my query.

There is no offense, as far as I'm aware (I say this out of an abundance of caution, but I am confident that there is not), in Texas law, which one will have committed for the act of declining to provide ID on demand when demanded as a result of person openly carrying a handgun. Any belief of TLS that an officer might have RAS or PC for a violation of unlawful carry is inconsequential - it doesn't change the fact that one would still have technically not committed any offense under Texas law. (the law that you reference used to create an offense, but it no longer does)

The statute I asked about was failure to ID. One would most certainly have not violated the failure to ID statute by declining to ID when detained (prior any arrest) for openly carrying a handgun. However, if charged with failure to ID anyway, even though you will have not been in violation, you will not be defended by TLS.

I think that everyone here should be fully aware that they may be charged with crimes that they did not commit - that is in fact a belief that predicates the very existence of TLS. If nobody was ever charged with a crime they didn't commit, there would be no need or use for TLS in the first place.

It's really beside the point, though. The object by TLS to coverage is not that one would be in actual violation (because they wouldn't) but that it isn't "gun related". The conclusion that it isn't "gun related" is highly subjective and debatable, but the fact is that without coverage, Texas OCers are left vulnerable by TLS.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

yabu

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Re: Follow up question on OC, IDing, failure to ID
« Reply #5 on: September 01, 2015, 07:28:47 AM »
As noted elsewhere on this forum there is a difference between legal and smart.  It may be technically legal to refuse to ID yourself when asked to do so by a LEO, but I don't think it is very smart.  You are just setting yourself up for some grief.  This will never be an issue for me since I am willing and eager to offer up all the ID I have to any LEO anytime he asks for it.  Staying out of trouble is always easier than getting out of trouble.  Just my two cents.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

MIO

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Re: Follow up question on OC, IDing, failure to ID
« Reply #6 on: September 01, 2015, 07:55:17 AM »
You seem to be worried about an easily preventable item. LEOs aren't just wandering the badlands looking to ID. Show'em the id and move on.
A lot of law enforcement is looking for things that might be that might not be. Not every encounter goes south either. In fact as a former street officer I made friends from encounters.
TLS shouldn't have to defend you from failure to ID. Don't create issues where there are none.
I don't wish it on anyone but IF you have to shoot someone or IF you have an event firearm related TLS might not have to defend you at all. They might just make sure you get due process during the investigative proceedings following an event. This is coming from experience. I've been court "defended" once but due process defended many times over.
Rather than point fingers at lawyers and cops make sure YOU are doing what YOU are needing to to defend yourself first. Personal responsibility will greatly limit the actions of the others needed.

Don't put yourself in a trick bag then whine cause the outcome isn't what you desired.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

talk2me

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Re: Follow up question on OC, IDing, failure to ID
« Reply #7 on: September 11, 2015, 01:41:48 PM »
Well... Here's my understanding of the up coming change in the law ....while I am NOT a lawyer it seems to me that even after "open carry" is legal as of jan 1st 2016 .....hand guns are still "illegal" under state law.

The CHL ( concealed handgun license ) will be converted to an HL ( handgun license )  the "open carry" is not "CONSTITUTIONAL" carry as handguns would still be considered " illegal" under state law .....so if a cop sees you carrying a handgun openly his job would require checking to see if you have a valid " handgun license " which from what I understand would be a defense to carrying an illegal weapon ( handgun) ..... Like I said I am NOT a lawyer. I'd love to hear the gang from TLS chime in here.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

stealth

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Re: Follow up question on OC, IDing, failure to ID
« Reply #8 on: October 01, 2015, 07:00:42 AM »
Quote from: "talk2me"
Well... Here's my understanding of the up coming change in the law ....while I am NOT a lawyer it seems to me that even after "open carry" is legal as of jan 1st 2016 .....hand guns are still "illegal" under state law.

The CHL ( concealed handgun license ) will be converted to an HL ( handgun license )  the "open carry" is not "CONSTITUTIONAL" carry as handguns would still be considered " illegal" under state law .....so if a cop sees you carrying a handgun openly his job would require checking to see if you have a valid " handgun license " which from what I understand would be a defense to carrying an illegal weapon ( handgun) ..... Like I said I am NOT a lawyer. I'd love to hear the gang from TLS chime in here.
Well, this is actually contrary to what TLS is saying.

When you cut out all of the BS wordsmithing, basically what TLS is saying is that despite OC passing, police officers can still arrest you on sight, without question, for OCing. TLS is implying that this de facto creates a requirement to ID, but it is important to remember that you will not be committing any offense by refusing to ID. Really what TLS is saying here is that officers can use the threat of arrest to extort you into forfeiting your 4th amendment/Section 9 rights, and TLS isn't really interested in defending you from that sort of extortion.

In such a case, TLS says, if you are subsequently arrested and charged with UCW, which you will not be guilty of, they'll defend you, but if you're charged with failure to ID, which you'll also not be guilty of, they won't defend you. So, all other factors exactly the same, you engaging in the exact same activity, whether or not TLS will defend you depends entirely on what you're charged with.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

LucasMcCain

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Re: Follow up question on OC, IDing, failure to ID
« Reply #9 on: October 01, 2015, 04:04:23 PM »
While it should go without saying, I'll say it anyway: I am not a lawyer.
Now, here's my understanding of the upcoming law change. While open carry will be legal for those of us who have CHLs, there is a caveat. Law enforcement officers WILL have the legal right to request identification from anyone they see openly carrying a handgun. This is specifically written into the law. It is not a violation of your rights for them to do so. Their assumption has to be that you are breaking the law. You have to show them that you are an exception because you have what will now be a Handgun License. This is my understanding and it's been a while since I read up on the subject. I'll be doing so again some time in December.  ;)  Hope this helps. If I'm wrong, I'm sure our lawyer friends will correct me.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »

switch

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Re: Follow up question on OC, IDing, failure to ID
« Reply #10 on: October 06, 2015, 09:00:28 AM »
The law says you have to give your LTC to a LEO if he requests it, whether you are carrying or not.  I know, the Sunset Committee did away w/the 90 day penalty. :)

Therefore, if you open carry and a LEO asks for your LTC, you have too, as a matter of law, give it to him.  If you refuse, he can assume you do not have one and arrest you for UCW.  Once he finds your LTC (you do have it in your wallet?), he should let you go.  Remember, there is no longer a penalty for refusing to give them your LTC.

It sounds like you intend to provoke any LEO that asks for your LTC.  I would not blame TLS for refusing to help.

However, it is real hard to lose TLS representation.  They will bend over backwards to help members.  I suspect they would be willing to advise you and talk to the DA if you did start trouble. :)

TLS has defended members that were OC'ing as a form of protest, which I think was above and beyond what I would expect them to do.
« Last Edit: December 31, 1969, 06:00:00 PM by Guest »