Author Topic: Texas Stop and Frisk (Identify)  (Read 1288 times)

Halftime Oracle

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Texas Stop and Frisk (Identify)
« on: October 06, 2017, 04:06:05 PM »
Texas Penal code 38.02 states quite clearly that Texas citizens have no obligation to identify themselves to a Police Officer unless and until that person has been lawfully arrested for a crime.  38.02 also states quite clearly that during an investigative detention (i.e., an officer is trying to find out whether or not a crime has been, is being, or is about to be committed and is holding a person who is not free to leave in order to find out whether they are involved or might be witness to a crime), that the detained person is only obligated no to provide false identity, but is under no obligation to provide any identity at all to assist the officer during his investigative detention.  Therefore, during an investigative detention of whether or not I am an LTC holder, according to TPC 38.02, no obligation exists to provide any identification whatsoever. 

Discussion in the Texas Legislature about "stop and frisk/identify," at the time Open Carry was being debated, centered on whether police could legally stop LTC holders merely, and because, they were carrying a holstered handgun.  The concern was raised by an African American lawmaker out of concern that police would be stopping and harassing legal AA license holders who were openly carrying, for no other reason than they were openly carrying.  Of course, legislators at the time stated during the debate that in the absence of other articulable suspicion of a crime, the mere open carrying of a firearm is not sufficient reason to detain an individual, and doing so would be precluded by the 4th Amendment guarantees of the US constitution, particularly since the person was engaged in perfectly legal activity and there was no other articulable suspicion of a crime that the officer could point to.   In other words, the presence of a holstered firearm was insufficient cause to detain.  The supreme court has further ruled that presence in a high-crime area is insufficient reason to detain a citizen, and that a detention requires that police have more than a "hunch" to stop and detain someone.  Fishing expeditions are disallowed, both under the constitution of the US and under Texas law. 

And yet... the CHL classes in Texas, whose content is fully mandated and controlled by the Texas DPS, and many other websites related to city and state government in Texas, state that you must identify yourself to any officer which asks for your LTC (e.g., Dallas Area Rapid Transit website, for example).   The content of the DPS-sanctioned course to which I have referred is absolutely and unequivocally in conflict with TPC 38.02, full stop.   

Why does the Texas DPS teach that LEO's can now stop and frisk/identify when TPC 38.02 says quite clearly that they cannot, and that not providing them identification until after an arrest is perfectly legal. 

Please explain.   Thanks!

TexasLawShield

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Re: Texas Stop and Frisk (Identify)
« Reply #1 on: October 12, 2017, 01:55:13 PM »
Halftime Oracle,

You’re correct regarding the parameters of TPC 38.02; however, it is not the only law that applies to identifying yourself. Texas Government Code 411.205 is the statute requiring an LTC holder to identify himself upon request. This statute reads:

If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

This means that you must present your LTC anytime you are asked for identification. Now whether or not the stop and request for identification is another matter. If you think you have been unlawfully stopped, you should contact your Independent Program Attorney as this is an issue that, for best results, is fought in the courtroom, not on the sidewalk. 

Halftime Oracle

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Re: Texas Stop and Frisk (Identify)
« Reply #2 on: October 12, 2017, 04:29:10 PM »
Thank you for your answer confirming the conflict.   A couple of follow up comments...

1) I don't see TLS helping anyone out in this circumstance.  Getting arrested on this basis is not "the use of a firearm," which if I understand it correctly is the scope and limit of TLS/USLS, and therefore I don't think getting unlawfully arrested and illegally (or extra-legally) charged for "Unlawful Carry" would qualify for engagement of the TLS program, unless I am somehow mistaken.  It is the kind of test case that is needed, but I wouldn't count on them stepping in, in my understanding of TLS.  If I am wrong, please correct me.   

2) Confusingly, I do notice you flowed freely back and forth between "request" and "demand," even in your answer, and these are very much different (consensual encounter versus arrest). Of course, as you know, the section you cite (411.025) has no penalty associated with it for any offender who doesn't comply (i.e., there is nothing to charge, and therefore nothing which can be charged for not complying, except for what would be later turn out to be an illegal charge for Unlawful Carry).    Please also correct me here if I am mistaken.

3) You used "demand," as does 411.025, but it seems to me that no officer can legally demand identification in Texas in the absence of an arrest (based on probable cause).  That’s the entire point of 38.02.  They can request it, but they can't legally demand it.  When he/she makes an arrest and demands your identification, of course, the person arrested is obligated by 411.025 to supply both kinds of identities (as is required during a traffic stop, which is an "arrest").  However, not providing both -- whether the arrest is legal or illegal -- incurs no penalty under the law.  You'll often see cops in videos saying "Do you have some ID on you," or "Can I see some ID," i.e., making a request for identification (not a demand) using the "cover" of a consensual encounter -- which looks, smells, and feels very much like a demand to any objectively reasonable citizen being spoken to by a gun and a badge -- unless you have established that he is detaining you (investigating a crime) or arresting you for a crime.   In contrast, 38.02 DOES carry a penalty -- for violating the "failure to identify" -- which is a chargeable crime, but doesn't come into play unless an arrest has been made and the person subsequently refuses to identify.   I think swapping from “request” to “demand” in your own answer even further illustrates the conflict

4) Unfortunately, in my view, this conflict in the law is another loophole for abuse because a cop can arrest you (even extra-legally), seize your gun, seize your license, and generally make things miserable for you for doing nothing but legally carrying openly and wanting to go about your day unmolested by authoritarians who don't like open carry, or who allow themselves to be used by anti-gun nuts who call 911 to "swat" anyone carrying openly.  (Note: Using LEO's to illegally harass people is a "thing," "swat" being a common term of art for using 911 to create a conflict of "suspicion" between citizens and LEOs where otherwise none would exist or ever even need to exist.)  More than one person has been killed as a result, one of which was trying to pull up his pants and begging not to be shot while crying, when he was shot 6 times after being “swatted” while engaged in perfectly legal activity in his own hotel room.  Since carrying a handgun openly is not an offense for which a "reasonable suspicion" exists that a crime is being committed -- given that the legislature stated in discussions at the time that doing so would violate the 4th amendment against unreasonable search and seizure in the absence of other suspicious behavior -- I guess the conflict will remain, along with the vagaries between these two sections in the TPC, at least until someone decides to bet the farm and be the guinea pig test case. I guess this is why lawyers get such good business... the law is vague and courts have to interpret it. 

I have seen reports that jurisdictions will stop all open carriers, but despite these early threats, I don't know that this is occurring routinely.   I guess making a stand for your rights in a rural county in Texas would probably get you legally murdered by the state, though, so I guess that's why we don't hear too much about it in the press.  Nevertheless, the city for which the cop on youtube --  who stated that if he couldn’t test the driver for DUI in the field that he was taking him to jail for DUI because, as the cop stated, “I can’t prove you are not drunk” – then illegally arrested the driver, ended up paying out big time in a settlement.  I guess it will take a similar kind of case resolution or two to sort out “demanding ID” and “Arresting” in the absence of probable cause when the only articulable suspicion the officer held was that the arrestee was openly carrying. 

TexasLawShield

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Re: Texas Stop and Frisk (Identify)
« Reply #3 on: October 20, 2017, 03:38:14 PM »
Halftime Oracle:

1:  Unfortunately, as independent program attorneys who do not make this determination, it would be difficult to say whether or not such an instance would be covered. The best way to procure an answer to this question would be to call Texas LawShield directly.

2 & 3:   While demand and request may have different dictionary definitions, in this case, the distinction is irrelevant. As stated in 411.205, upon demand you are required to show your ID, period. You stated an officer can’t “legally demand identification in Texas in the absence of an arrest (based on probable cause).  That’s the entire point of 38.02.” But that is not the point of 38.02. 38.02 criminalizes the conduct of a citizen, it does not prohibit officers from doing anything. In your original post you state there is no “obligation” to provide identification (unless the elements of 38.02 have been met). You even say “38.02 states quite clearly that Texas citizens have no obligation to identify themselves.” But it is not so clear. The penal code only enumerates and explains what is, and is not, a crime.  Just because it is not a crime does not mean you don’t have an obligation. 411.205 creates that obligation.

Standing alone, 38.02 might make you think this is the case, but don’t forget there are other parts of the law. 411.205 of the government code does not conflict with 38.02. Nothing in 38.02 says an officer can’t demand your ID and 411.205 creates an obligation to provide it. This is a subtle difference, I know, and one that has significant legal consequence.

4:   You are right to think that this gives police yet another way to abuse their power. The good news for the gun carrying citizenry is that the courts understand the rules better. Some Texas courts have ruled in favor of the citizenry on these issues. E.g. St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007) (holding that arrest of passenger for failure to identify not valid absent legal detention).

We know this is a confusing subject, so we encourage you to call TLS to speak with one of the independent program attorneys. You are right to be playing out these scenarios in your head to make sure you stay on the right side of the law. However, as a precaution, remember that police have broad discretion with arrests and reasonable suspicion is a very low bar. We advise members to save these battles for the courtroom rather than the street!

Buzz

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Re: Texas Stop and Frisk (Identify)
« Reply #4 on: November 04, 2017, 05:07:54 PM »
"However, as a precaution, remember that police have broad discretion with arrests and reasonable suspicion is a very low bar. We advise members to save these battles for the courtroom rather than the street!"

Good advice.

Speaking for myself, if I did not have a Texas LTC and was walking down a Texas street and asked for ID, I would not provide it unless first placed under arrest or otherwise required by law to provide ID. I would also be most courteously most tight-lipped. My God-given unalienable rights as codified for U.S. citizens in the U.S. Constitution have been defended and protected from tyranny with the precious blood, guts and lives of countless brave men and women of the armed services. I will not betray them by giving up what they have purchased for me at such a high price, the highest price one can pay.

But since I do have a Texas LTC, and since the law requires it, I will always most courteously, but without kissing up, provide ID when requested, while still most courteously be most tight-lipped as I can.

In my own professional field, I represent others in business negotiations. My clients are not qualified to negotiate on their own behalf. Those who try to self-represent and negotiate on their own behalf succeed only in showing their a$$es to the counterpart and making fools of themselves. Then when they realize that they have screwed up, and they call me to take over, I am stuck with trying to fix the damage they have already done.

That's a lesson I take for myself in my own dealings with LE. Dealing with LE is not my field of expertise. I know my limitations. I am not a lawyer, a criminal defense expert, or otherwise qualified to debate the law with LE. I know that if I try to do my own talking and self-represent, I will only show them my a$$ and screw it all up for myself. So instead of debating the matter, I would instead say something like, "Thank you, officer. I'm sure my lawyer will be happy to discuss that with you."