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Messages - TexasLawShield

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1
sacvet,

1.     Yes your reading of the statute is correct.  If you do not have a CWFL, then the firearm must be in a secured case and not in your manual possession (in your hand).  The safest way of transporting a firearm on a public conveyance is to have it secured and stored in the luggage department under the bus or at least in a place you cannot reach the firearm. 
2.   Yes trolleys open to the public for transportation would be considered a public conveyance. 

2
Ask the Lawyers / Re: Legality of carrying with "Clipdraw"
« on: February 02, 2018, 03:22:23 PM »
Mrjlw,

You are correct that Texas law requires an openly carried firearm to be in a belt or shoulder holster. If the firearm is concealed, there is no holster requirement. Holster is not defined in the penal code, so it would likely be given its plain or traditional meaning as understood by a layperson. There is little caselaw that gives guidance on what is and is not a holster.

Clipdraw makes two categories of firearm securing products. One is simply the clip that fastens around the frame or the slide of the gun allowing easy attachment to a belt or pocket. The other is the clip with an attached trigger guard. Although holster is not strictly defined in the penal code, it is unlikely that either of these items would be considered a holster. The video on the clipdraw website even states “use clipdraw for inside the waistband concealed carry without a holster.”

Clipdraw can be used for concealed carry in Texas because there is no holster requirement. But if you plan to open carry, using clipdraw might be an unlawful carry. Hopefully in the coming months, we get more guidance from the courts but in the meantime, it’s better to be safe than sorry.

3
Randy024,

Thank you for your questions. Due to the complexity of the issue, please reach out to our independent program attorneys at 877-448-6839 who will be able to assist you further.

4
Ask the Lawyers / Re: Loaded Truck Gun with Handgun License in OK
« on: February 02, 2018, 03:20:05 PM »
Initial points, only pistols qualify for carrying purposes under the SDA. You don't need a license to carry a firearm, pistol or long gun on private land. However, when you venture onto public roads, you must carry all firearms according to law.

Oklahoma Statutes:  21 O.S. section 1289.13, transporting a loaded firearm says:
Long guns, shotguns and rifles cannot be carried loaded in a vehicle on public roads.

Sorry, under Oklahoma law, you cannot store and then transport a loaded rifle under the back seat or anywhere in your truck on a public road, except empty.

Sorry, but the rifle cannot be chamber loaded when being transported on a public road. When the magazine is loaded, chamber empty, the rifle must be transported in an exterior locked compartment of the vehicle or trunk; or in the interior of the vehicle, when the person is in possession of a valid handgun license.

If you have a pistol, AR pistol or other rifle caliber pistol, qualifying for pistol status under Oklahoma and ATF regulations, it is a very valid and convincing argument that the AR pistol is a pistol and not a short barreled rifle. If you have a pistol, you may carry it fully loaded anywhere on your person and transport your pistol legally under the Self Defense Act. For example the Ranch Hand lever action pistol is a pistol even though it looks like a short barreled, short stocked, lever action rifle. Another example: The CZ Scorpion looks like a short barreled rifle, but it is a pistol. Your AR pistol must have been originally manufactured as a pistol and not a rifle to qualify as a pistol.

5
Thanks so much for your question. Due to the nature of the restrictions in Virginia law, more information is needed before we can provide an accurate response. Please feel free to contact our independent program attorneys who can further assist you with your question.

6
Neighbor’s correct that you have plenty of options to consider. Practically speaking, it’s unlikely that your employer would discover a firearm concealed in your locked vehicle while you’re working and even less likely that they would search your vehicle at any point. Assuming they did discover your handgun, you would still not be in any legal trouble, just going against your employer’s wishes.

Keep in mind that Texas is an at-will employment state. This means that your employer can terminate your employment for any reason at any time (e.g., your employer lets you go because they hate your sweater). They can terminate you if you violate the policy whether it’s written or not.

7
Ask the Lawyers / Re: TASER carry
« on: January 05, 2018, 05:04:12 PM »
The Texas Penal Code does not specifically address TASERs. For that reason, it is legal for you to carry a TASER openly or concealed. TPC 30.06 and 30.07 signs specifically prohibit carrying a handgun, and they do not prevent you from carrying a TASER. That being said, your experience at the restaurant is not surprising because TASERs resemble handguns when holstered. The 30.07 sign does not make you a trespasser. But, once you receive verbal notice that you cannot have your TASER in the restaurant and you refuse to leave, you become a trespasser under TPC 30.05. Although this is not the same crime as trespassing with a concealed handgun, it is a crime nonetheless. The restaurant owner or manager has the right to kick you out or refuse to serve you, but not the right to charge you with a fine. If the owner called the police, the officer may charge you with a fine, but it would likely be much less than $10,000.

Neighbor brought up a good point. A TASER is a weapon. While a TASER is generally designed to be non-lethal, it can be used in a manner that could cause serious bodily injury and therefore it could even be considered a deadly weapon in some circumstances. For that reason, you would be justified in defending yourself against someone unlawfully attempting to stun you with a TASER.

8
All use of force cases, deadly and non-deadly, are fact specific. The right answer in one specific case can be the wrong answer in a slightly different one. Without developing a lot of the facts, writing in generalities is difficult. However, we will try here.

The question is really one more of tactics than of law.

If you are actively being robbed (meaning in the legal sense a theft with some level of force) or it is both objectively and subjectively reasonable to believe under the totality of the circumstances that you are imminently going to be robbed, yes, you can actually use lethal deadly force to defend yourself. The most frequent of these types of things that we see are in the case of the ATM. Perhaps it is not your best day in terms of situational awareness and someone gets the drop on you with a gun, you are then being actively robbed. As such, the law authorizes you to use deadly force, not merely display or reference, but actually kill. Change the facts a little and the result can be totally different. Suppose you are at an ATM and you see someone is merely behind you (Not a great place to find yourself generally. Perhaps the best thing to do is to let that person cut in front of you or cancel the transaction, but that is situational awareness and threat avoidance, not the law), this person who is behind you shows no pre-incident indicators, is like most people nose deep into his phone, and appears to be not a threat. You may not use deadly force because it is not objectively reasonable (even though you may subjectively feel) that you are about to be robbed.

Those are extreme cases that provide bookends. The murky area is in that great middle that we call the real world. It is a world where you have to make split second decisions based upon incomplete information, one where hesitancy can equal your death, and one where a bad decision can lead to jail.

So, let’s examine a more complicated scenario. Suppose you are at the ATM. Because you are practicing good situational awareness, you see a person lurking about 15 meters away. They are exhibiting several pre-incident indicators such as “picking” at their waistband area, loitering with no explanation, and seem to be looking all around (looking to make sure that there are no witnesses). You turn to orient yourself to the potential threat but not aggressively so. His reaction is to grab in his waistband with high elbows in a drawing fashion for what you believe to be a gun, but it turns out in a split second to be a knife. You react by pulling your gun. The robber does the math and realized that he brought the wrong tool to work today. He throws down the knife immediately before you are on target with a good sight picture and have made sure your back drop is sound. He throws his hands up in the air and otherwise totally surrenders. Can you now use lethal deadly force? Absolutely not. No immanency. He just stands there. You instruct him to face away. He decides to practice run-fu and takes off. Can you now use lethal deadly force? Absolutely not. No threat and we do not live in a fleeing felon world for private citizens. Change the facts. You order him to turn around. He does. You order him on his knees. He does. You order him to cross his feet at the ankles. He does. You instruct him to put his hands behind his neck and interlace his fingers. He does. Can you now use lethal deadly force? Absolutely not. Now you think to yourself, I want to make sure he doesn’t get away so I want to physically restrain him. Can you legally do so? Perhaps. But boy is that dumb. Police officers get many, many hours of training on how to restrain someone. They usually do it in a team or in such a way that the polyester dogpile can help overcome resistance. The notion of putting handcuffs on someone or tying up their arms is really really risky. First, a firearm is a distance tool best used at distance. Restraining someone is a contact event meaning no distance. Not a good idea. Plus, what are you going to do with your weapon, re-holster it? Not the best move versus just keeping him at distance and at gun point. You are not the police. Wait for the police. Keep the gun in one hand while you fiddle with handcuffs and/or zip ties? Not a great idea because of sympathetic reaction that may come with attempting to restrain causing a negligent discharge. Even if you have significant open hand skills, even if you are former LEO, don’t close that gap. And if he runs off, don’t pursue the fleeing felon and for goodness sake don’t shoot the fleeing felon. You are not police.

As far as signage goes, myself personally, my home has surveillance and an alarm. I DO post those signs because I want the potential burglar to know that he has other easier options to choose from that will be easier. As far as “beware owner has a gun” signs, it is up to you, but I am personally not a big fan. But all sorts of those signs are lawful (subject to HOA or zoning ordinances). The big advantage that any private citizen has in a home invasion is that it is your home and you are familiar with it. Why give the bad guy who is bent on entering your house despite the alarm and surveillance posting, despite the audible alarm going off, and despite the video recording being perfect evidence against him or her any clue as to what level of resistance he or she may encounter?


9
The statue you mentioned—Texas Labor Code § 52.061—states part of the answer to your question. This statute reads:

A public or private employer may not prohibit an employee…from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.

Under this law, an employer may not prohibit you from storing a firearm in your locked vehicle while you are working. There are exceptions to this law for employer-owned vehicles, federal employees, plant workers parking in a secure lot, and some others; however, as a retail worker, these exceptions do not apply to you. You should be perfectly entitled to store your firearm in your vehicle while working, and your employer should not be permitted tell you differently.

Unfortunately, this statute provides no penalty to an employer who violates it, and the attorney general has weighed in on the issue, saying this means no penalty is available at all. In other words, an employer can violate this law, prohibit you from keeping a handgun in your vehicle, terminate you for doing so, and face no legal repercussions. You are not committing a crime by violating your employer’s handgun storage policy, but doing so potentially risks your job.

So you are correct and incorrect. There is a law requiring your employer to allow you to store a firearm in your vehicle while you work. But, your employer can violate it without consequences.

10
Ask the Lawyers / Re: Carrying in a no gun posted business, store, etc.
« on: January 05, 2018, 04:56:43 PM »
No gun signs, other than specific government buildings, do not carry the force of law.  However, a private property owner may refuse to allow you to enter their property with a firearm, regardless of whether you possess a valid CCW permit.  If you refused to leave, you subject yourself to possible criminal trespassing charges.  You could also be charged with unlawfully carrying a concealed firearm. 

11
Ask the Lawyers / Re: Open and loaded carry of a rifle (long gun)
« on: January 05, 2018, 04:56:05 PM »
No. MD says you need to have permits to open carry unless law enforcement, basically.

You may open carry hunting shotgun or rifle though if non-banned for/while hunting, but that’s about it unless you fit some other exception.

12
Ask the Lawyers / Re: 1994 Weapon ban question
« on: January 02, 2018, 04:31:08 PM »
TinCuda,

The 1994 Act no longer restricts manufacture of firearms. If you have a lower receiver purchased or manufactured between 1994 and 2004, the Act no longer restricts your ability to modify the firearm. The ATF sent an open letter dated September 13, 2004 stating simply: “There is no longer a Federal prohibition on the manufacture, transfer and possession of SAWs.”

If you have a lower receiver and you combine it with an upper, then you are manufacturing a firearm. Modification, such as adding a stock or other accessories, is treated the same as manufacture. You can now add the features, such as a telescoping stock, that would have otherwise made the lower a SAW under the old law. When dealing with a lower you must be careful not to put an otherwise regulated attachment on the firearm such as a silencer or a barrel less than 16 inches. But generally, things like pistol grips, telescoping stocks, optics, etc. are allowed.

If you would like more information or guidance on the subject, a good source is the ATF website. They publish a firearms reference guide that normally answers many questions you might have. They also have an FAQs section that is helpful.

https://www.atf.gov/questions-and-answers/firearms-qas


13
Ask the Lawyers / Re: Private Sale
« on: December 20, 2017, 05:11:54 PM »
AoV777,

There’s no reason to fear engaging in a private firearm transaction with another Texas resident, as long as you are careful. In Texas, a private sale is perfectly legal with no documentation as long as you meet the following requirements:

1.   Both of you are Texas residents;
2.   You do not know or have reasonable cause to believe that the purchaser is prohibited from possessing or receiving firearms under state or federal law; AND
3.   You do not know the buyer intends to use the firearm to commit an unlawful act.

The letter you required this man to sign likely holds no legal effect, except as evidence that you had no knowledge. If a buyer isn’t eligible to possess firearms and a prosecutor charges you with a crime, that prosecutor must prove that you knew or had cause to believe that the purchaser was not eligible to possess or receive firearms  in order to convict you of that crime. Under TPC 6.03(b), a person acts with knowledge when he is aware of the nature of his conduct or that the circumstances exist. This means that even if you slip up and sell to the wrong person, if you took measures to ensure you were doing everything right, it will be difficult for a prosecutor to succeed in a case against you.

Though the nothing is formally required, here are some tips for engaging in private sales:

   Ask for identification to ensure the other party is a Texas resident.
   Execute a “bill of sale” for the transfer and keep a copy (if you call TLS prior to these transactions, an independent program attorney will be happy to send you a form you can use)
   Ask if there is any reason why the buyer cannot own a firearm

If ever you find yourself uncertain or nervous about a private sale, you can always have an FFL facilitate the transaction. That way, you ensure you’re participating in a lawful transaction.


14
Ask the Lawyers / Re: HB435 Volunteer Emergency Services
« on: December 14, 2017, 02:07:02 PM »
Ng101,

You may qualify as “volunteer emergency services personnel.”

TPC § 46.01(18) defines volunteer emergency service personnel as “a volunteer firefighter, an emergency medical services volunteer as defined by Section 773.003, Health and Safety Code, and any individual who, as a volunteer, provides services for the benefit of the general public during emergency situations.” This text requires only that you be a volunteer and that you provide services for the benefit of the general public during an emergency situation. Unfortunately, since this is a new law, we have no guidance on how courts will apply this text; however, this definition likely will apply to TEXSAR.

If it applies to you, this law eliminates criminal responsibility for carrying a handgun most places that weapons are prohibited. It creates a defense to prosecution if—while performing emergency services—you carry beyond a 30.06 or 30.07 sign or into a location listed in TPC § 46.035(b) or (c). The locations listed in § 46.035 include 51% establishments; sporting events; hospitals, places of religious worship, and amusement parks posted with 30.06/30.07; civil commitment facilities; or properly posted government meetings. But, you still may not carry into correctional facilities. Keep in mind, you must be performing the emergency services to qualify. This law is not a free pass to carry all the time. 

HB 435 also creates TPC § 46.15(a)(10), exempting you from prosecution under §§ 46.02 and 46.03 IF (1) you were carrying a handgun with a valid LTC and (2) you were engaged in providing emergency services. This means you cannot be prosecuted for unlawfully carrying weapons or carrying a handgun in a place weapons are prohibited (e.g., airports, polling places, schools, etc.) resulting from your provision of emergency services.

Your employer is allowed to make rules restricting your right to carry while on the job. These rules will not carry any criminal liability, but violating the terms set by your employer may subject you to discipline or termination.

15
Ask the Lawyers / Re: Tasers and Stun Guns in NJ
« on: December 07, 2017, 10:58:47 AM »
Possess - Yes.
Carry - No

Under NJ law, weapons are frequently governed by multiple statutes at the same time. So for example, there are per se prohibitions under 2C:39-3 for weapons such as switchblade knives, dirks, daggers, and stilettos.

Then there is also the general prohibition in 2C:39-5(d) on possession of weapons under circumstances not manifestly appropriate for such lawful uses as it may have.

For example, even though a dagger is subject to the per se prohibition of 2C:39-3, it is almost certainly also subject to the more general prohibition of 2C:39-5(d). So if, tomorrow, the legislature repealed the per se prohibition of daggers from 2C:39-3, a dagger would still be a weapon and therefore subject to the more general prohibition found in 2C:39-5(d).

So now applying that to stun guns. Stun guns were previously per se illegal under 2C:39-3(h). The result of the lawsuit is that 2C:39-3(h) was stricken as unconstitutional. So it is no longer per se illegal.

But a stun gun is still a weapon under 2C:39-1(r), and so it is almost certainly subject to the more general prohibition of 2C:39-5(d), that is, under circumstances not manifestly appropriate for such lawful uses as it may have. (Possession in one's home is exempted under 2C:39-6e.) The lawsuit did nothing to change this, nor do the new proposed regulations.
Under the New Jersey case of State v. Kelly, self defense does not count as a "lawful use" under 2C:39-5(d). The term "weapon" is very broadly defined under NJ Law. Thus, many items that fit the definition of "weapon" also have non-weapon uses, such as a baseball bat. So the idea is that the closer you are to possessing a weapon for its non-weapon purpose (like possession of a baseball bat at a baseball game), the better off you are under 2C:39-5(d).

So now applying this to stun guns, its hard to imagine carrying a stun gun in public for a non-weapon purpose.  What are you doing with it? Herding cattle in Newark? Without such a non-weapon purpose, carrying around a stun gun poses a very substantial risk one could be charged with violating 2C:39-5(d).

Do not carry a stun gun or taser in New Jersey.

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