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Ask the Lawyers / Re: Texas Stop and Frisk (Identify)
« Last post by TexasLawShield 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!
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Ask the Lawyers / Re: UCW and 46.15 - NON-APPLICABILITY
« Last post by TexasLawShield on October 20, 2017, 03:29:19 PM »
dsd,

Your interpretation of 46.15(b)(6) is correct. It excludes LTC holders who are carrying a handgun under the authority of their LTC from TPC 46.02.

There is a common misunderstanding that 46.15 allows an LTC holder who is also carrying a handgun to carry a club. Unfortunately, this is not the case. No person is legally permitted to carry a club unless his or her job is one that requires a club and is mentioned in 46.15 (e.g., commissioned security officers, military personnel, animal control officers who hold a special certificate, etc.).
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- April 15, Mansfield, Texas-

A disabled veteran on a daily walk from his residence to a local park pulled a legally carried firearm to defend himself from a vicious dog attack on a public street. No shots were fired as the disabled veteran was able to reach safety without firing his weapon, as local residents were outside their homes raising safety concerns. Mansfield police responded to a 911 call and confiscated the veterans weapon, releasing him from the scene to return home. However, four days later he was arrested for display of a firearm calculated to cause alarm. The veteran awaits trial in Tarrant County Court number 9.
The dog owners were not cited and the dog remains at the residence.
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Ask the Lawyers / Re: Negligent Discharge: Legal obligations
« Last post by Al on October 16, 2017, 06:50:43 AM »
You might also consider a DA/SA model with a decocker which lets you safely lower the hammer after racking your first round.

https://youtu.be/VpSk0FUwR4s
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Ask the Lawyers / UCW and 46.15 - NON-APPLICABILITY
« Last post by dsd on October 13, 2017, 12:21:01 PM »
I'm trying to figure out if my reading of 46.15 (b) (6) is correct. Here's what I think is the revelant text.

Sec. 46.15.  NONAPPLICABILITY.

(b)  Section 46.02 does not apply to a person who:
(6)  is carrying:
(A)  a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B)  a handgun:
(i)  in a concealed manner; or
(ii)  in a shoulder or belt holster;

Of course 46.02 is UCW that would prevent carrying of a club, etc.

Sec. 46.02.  UNLAWFUL CARRYING WEAPONS.  (a)  A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:...

Is there another law or rule that would apply to carrying a club as defined in 46.01 if compliant with 46.15 (b) (6)? My interpretation is that UCW 46.02 does not apply to a person with an LTC legally carrying a concealed or openly carried handgun.
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Ask the Lawyers / Re: Texas Stop and Frisk (Identify)
« Last post by Halftime Oracle 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. 
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Ask the Lawyers / Re: Texas Stop and Frisk (Identify)
« Last post by TexasLawShield 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. 
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Ask the Lawyers / Re: Is Class C 30.06 Misdemeanor violation a "sign and drive" arrest?
« Last post by Buzz on October 12, 2017, 10:14:30 AM »
On the sign issue, in my town, a convenience store I often shop in came under new ownership and management, and the the new owners put up 30.06 and 30.07 signs in windows of the stores.

Upon seeing the signs in the windows on my next visit, I stuck my head in the door and told the clerk that I have seen the 30.06 and 30.07 signs in the windows, and told her to please tell the new owners that as long as I am prohibited from carrying in that store, I will never, ever enter the store to buy anything, and I will never ever buy gas at their pumps, and I will also tell everyone I know to do the same - and that as a result, they will lose a significant amount of sales every single month.

I drove by the store a week or so later, and the signs had been removed.

On the "lift your shirt" issue, speaking only for myself, I would be very, very careful about placing my hand anywhere near my handgun upon being approached by an LEO. Upon being approached by an LEO, I would always keep my hands in clear view in front of my body, and preferably away from my body, like on my steering wheel, or on the hood of my vehicle, or on a table top, and in all cases preferably in clear view of a dash cam or security camera.

On the other issues, this is very good conversation and very helpful.
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Halftime, your statement on a public forum that you intend to disobey 30.06 signs probably won't make your defense any easier!
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Ask the Lawyers / Re: Carry in House of Worship in CO/Security Team
« Last post by TexasLawShield on October 09, 2017, 01:02:13 PM »
TennVOL,

Our civilian program covers you regardless of the capacity in which you may be acting (LEO, security, PI, etc.).  They key is you must be able to lawfully possess the firearm or other weapon at the time you use it and in the place you use it.

I hope this answers your question.  Feel free to contact us if it does not.
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