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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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Ask the Lawyers / Re: Spouse as a witness in dealing with law enforcement
« Last post by Balfy on October 08, 2017, 09:57:13 AM »
Thank you for the information.
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Ask the Lawyers / Re: Negligent Discharge: Legal obligations
« Last post by TexasLawShield on October 06, 2017, 04:14:07 PM »
Halftime Oracle:

We always recommend proper training and safety in the use of your firearm. If you are concerned about the weight or distance of the trigger pull on your DA/SA while in single action you may consider carrying a different type of handgun. Also consider handguns with safeties—such as the grip safety on the Springfield Armory XD. These prevent discharge of the firearm unless is it is firmly grasped in the shooting hand.

Regarding Negligent Discharge:
(A)   Whether you choose to report the incident or not is a personal decision that is best made after weighing all possible outcomes. While there is no legal obligation to report yourself to law enforcement in cases of negligent discharge, there may be other factors (which we will address below) that might push you closer to one decision.  It is generally a good idea to inform Texas LawShield so your independent program attorneys can be aware of the situation and are prepared to help you in case any issue arises. At the end of the day, however, whether or not you choose to report the incident is a personal.
(B)   The legal obligation to report the incident does not change because of change of location or amount or nature of property damage.
(C)   The legal obligation does not change because of the presence of witnesses. However, it may be in your best interest to report the negligent discharge. If there is any reason to believe a witness would call the police we recommend you report the negligent discharge. In general, someone is likely to call the police if they hear a gun shot in a public place. Police tend to view non-reporting as a sign of guilt and are more likely to arrest/hassle/charge you if you did not report the negligent discharge yourself. Furthermore, you want the police to hear your side of the story first. Other witnesses can sometime twist the events in their head and might report the negligent discharge as “a maniac with a gun,” or claim “he threatened me with his gun.” So if you are in public and you have a negligent discharge, we recommend you call the police to explain what happened.
(D)   Coverage determinations are made on a case-by-case basis. As independent program attorneys, we do not make coverage determinations before an incident. Ordinarily, coverage includes accidental discharges. 
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Halftime Oracle,

Your concerns seem to surround the limits of open carry as it exists in Texas. Texas Penal Code § 46.02(a-1) makes it a crime for a person to carry a handgun in a motor vehicle if that handgun is in plain view unless it is carried in a shoulder or belt holster. This means that unless the handgun is concealed, it must be carried in a belt or shoulder holster. However, while the law uses the term “plain view,” it does not invoke the “plain view doctrine.” Under state and federal case law, the plain view doctrine is a principle that a police officer can seize contraband or evidence of a crime if it is in plain view. Thankfully, we don’t have to worry about that here! Instead, “plain view” in this context refers to whether a person could, from outside the vehicle from any angle, see your firearm.

Questions 1, 2, & 4:
1, 2, and 4 are best answered together because they feed into each other.

There’s a chance that mounting a belt retention holster to the car’s console is legal but there’s also a  chance it’s not. Because the open carry law is so new in Texas, we don’t know whether the belt holster has to be on the person or if it can be mounted elsewhere if it is going to be visible. While it may not be visible while you are inside the car, imagine a police officer asks you to exit the vehicle. Your handgun would be plainly visible then, opening you up for a possible unlawful carry charge. Now what started as a simple traffic stop has turned into a Class A misdemeanor under TPC 46.02.

Question 3:
Since open carry is a relatively new concept in Texas law, we do not yet have case law determining what constitutes “on or about your person.” If the mounted handgun in your vehicle is not concealed or carried on your person, carrying this holster could result in criminal charges. This may make you the test case for the limits of open carry laws, and your fate will be in the hands of the legal system.

Question 5:
Having an empty holster in your vehicle is not in itself a violation of the law. You draw a connection to drug paraphernalia; however, drugs and paraphernalia are illegal to own. A handgun is legal to own and to possess in your vehicle. For this reason, possessing handgun accessories is not a crime.
It is possible that officers will see the holster and have reasonable suspicion that you have recently taken the handgun from the holster and are holding it. If that were the case, the officer could ask you to step out of the vehicle and frisk you for weapons to ensure his safety. This is perfectly within the officer’s rights, and you are not guilty of a crime if he takes those measures.

Conclusion:
As you can see, the law is nuanced and what may seem like a harmless, convenient way to keep your handgun in your car can result in serious legal trouble for you. For that reason, instead of mounting a belt holster to your console, we advise keeping the holster on your person or concealing it fully within your vehicle.

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Halftime Oracle,

To begin, it is never a good idea to choose to break the law. The mere act of walking beyond a 30.06/30.07 sign with a handgun is a Class C misdemeanor.  The legal implications of your scenarios are as follow:

Scenario 1:
If an employee asks you to leave for carrying your firearm in violation of 30.06/30.07 signage, and you refuse, you are guilty of a criminal trespass. In fact, if you enter a business and are given oral notice that carrying a firearm is prohibited, failure to leave as instructed will constitute a Class A misdemeanor. TPC § 30.06(d) states:
An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication…and subsequently failed to depart.
In other words, once the employee asks you to leave and you refuse, you have committed a Class A misdemeanor. The punishment for a Class A misdemeanor is a jail sentence up to one year and a fine up to $4,000, much more than the $200 fine you originally faced.
                                                                                                                                                                   
Scenario 2:
If after Scenario 1, the employee attempts to detain you until police arrive, you are within your rights to walk away. Although the employee likely is allowed to detain you, you are not required to abide by their instructions.
You are not obligated to follow the orders of a common citizen, even while that person is performing a citizen’s arrest. If they are not law enforcement or acting on orders from law enforcement, there is no crime in disobeying their orders. This does not prevent the employee from calling the police, as I will explain in Scenario 3.

Scenario 3:
If you walk out of the store and employees choose to press charges against you for carrying a handgun on the premises, they can call the police and file the appropriate report. If a police investigation indicates that you broke the law, an officer is entitled to issue you a citation regardless of whether he does it at the grocery store or at your house.

Scenario 4:
The weapons check you described would be legal under Terry v. Ohio. If an officer observes a “bulge” under your shirt and believes it is a handgun, he has reasonable suspicion that you are committing a crime (criminal trespass under TPC § 30.06). Because of this, he is entitled to temporarily detain you and to search the outside of your clothing for weapons or contraband. Asking you to lift your shirt is a courtesy he does not owe you, and if you refuse, he can still pat you down to disarm you.
Once he finds your weapon, he has probable cause that you have committed a crime and is entitled to arrest you if he chooses.

Scenario 5:
Under the Texas Code of Criminal Procedure, police can arrest you for almost any crime they see you commit, no matter how small. This means they can arrest you and give you a hard time for a Class C misdemeanor if they choose.
That said, in our experience police never arrest for violation of 30.06/30.07 signs. It is unlikely that the circumstances you described in Scenario 4 and 5 would arise, as the most likely people to enforce a “no handgun” policy are the managers and owners of that establishment.

Conclusion:
Rather than testing the limits of criminal trespass laws, we recommend denying your business to those establishments who don’t celebrate your Second Amendment rights. You could even print of “No Guns, No Money” cards and give them to the managers of these establishment. These cards explain why you’re denying your business. If enough conscientious citizens do this, these businesses will get the message and take down their signs.

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Ask the Lawyers / Texas Stop and Frisk (Identify)
« Last post by Halftime Oracle 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!
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Ask the Lawyers / Carry in House of Worship in CO/Security Team
« Last post by TennVOL on October 04, 2017, 07:28:15 PM »
Does USLS cover an individual who is acting as a member of a volunteer security team in Colorado?   
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Ask the Lawyers / Re: Carrying a firearm to an argument
« Last post by SirBobsalot on September 30, 2017, 04:48:56 PM »
Thank you very much Texas Law Shield!
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Ask the Lawyers / Re: Spouse as a witness in dealing with law enforcement
« Last post by TexasLawShield on September 29, 2017, 10:34:40 AM »
Balfy,

If your wife is present during an incident, she is not required to give a statement to the police. Just like you, it may be in her best interest to refuse to give a statement at the scene. Even if she means well, she may give incorrect information or forget important details while her adrenaline is pumping after the incident. Even though it wasn’t intentional, it’s possible that law enforcement then uses these mistakes against you later on down the road.

That said, if you are charged with a crime, during trial a prosecutor can compel her to give a statement of the events she witnessed. While all your communication with her is privileged and she is not required to testify against you, the prosecution can promise her immunity and require her to testify about what she saw on the night of the incident.
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Ask the Lawyers / Re: Carrying a firearm to an argument
« Last post by TexasLawShield on September 29, 2017, 10:32:48 AM »
SirBobsalot,

Your hypothetical makes sense. The times when you most need your firearm are when you are dealing with potentially violent confrontations. The statute referred to above, Texas Penal Code 9.31(b)(5), does not make your conduct illegal. You do not have to disarm. The statute only addresses unlawful carry. It states that you will not be justified in your use of force if you carried your gun, “in violation of Section 46.02,” to an argument.

9.31 explains the legal protection given to someone who uses force in self-defense. However, you may lose this legal protection if you: (1) carried your gun to an argument; AND (2) were carrying unlawfully. If you are lawfully carrying your firearm, 9.31(b)(5) does not apply, and you have nothing to worry about.

To address your hypothetical, if you have your LTC and you approach your neighbor on a public sidewalk, you are lawfully carrying and you keep the protections of 9.31. If you go to your neighbor’s house, you stand on the front porch, you have nothing to worry about. If, however, you walk into your neighbor’s house and he tells you that you cannot have your firearm then you have carried in violation of 46.02.  You could potentially be found guilty of unlawful carry if your neighbor calls the cops.
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