TLS Edwin Walker says Texans will be required to ID on demand

[bushwacker]

ok they removed amendment 9 that basically say that the fuzz can not stop just to check for license but does it say anywhere that they can stop to just check or is that just something assumed.... officer can you show me where it says you can detain me just for checking? or am I not being detained?

 

[notalawyer]

ok they removed amendment 9 that basically say that the fuzz can not stop just to check for license but does it say anywhere that they can stop to just check or is that just something assumed.... officer can you show me where it says you can detain me just for checking? or am I not being detained?

The argument is that you are technically committing a crime by carrying the firearm (either concealed or openly) and the permit is only an affirmative defense to the charge. But there is some case law that says one may not be detained simply to verify the presence/possession of a license to conduct some activity or to produce an ID.

 

[nonameisgood]

The argument is that you are technically committing a crime by carrying the firearm (either concealed or openly) and the permit is only an affirmative defense to the charge. But there is some case law that says one may not be detained simply to verify the presence/possession of a license to conduct some activity or to produce an ID.

The new law changes this. Carry by a license holder will not be a crime. Persons licensed to carry a handgun are excluded from 46.02 as it pertains to carry of a concealed handgun or a handgun in a belt or shoulder holster.

Edit to add: and the legislature established intent in the record that the amendment was removed BUT LE is prohibited by case law and state constitution from demanding to see a license only because one is carrying in a belt or shoulder holster. LE lobbying was the reason it was removed, and I expect abuse of this.

 

[SteveInCO]

LE lobbying was the reason it was removed, and I expect abuse of this.

I expect that will turn out to be an understatement.

If they believe it's implicitly in the law, then there was NO reason for them squawking about an explicit statement about what is implicitly in the law, other than they wanting to be able to flout that interpretation is and get away with it, figuring they can find a literal-minded judge to bless their transgression.

Or alternatively, they think it's not even implicitly there, and want to preserve the "freedom" to jack you up if they don't like the cut of your jib.

Either way, expect unpleasant encounters of the carrying while ____ variety. (Fill in the blank with whatever the cop doesn't like. "Black" "Mexican" or even "carrying.")

 

[bushwacker]

The argument is that you are technically committing a crime by carrying the firearm (either concealed or openly) and the permit is only an affirmative defense to the charge. But there is some case law that says one may not be detained simply to verify the presence/possession of a license to conduct some activity or to produce an ID.

looks like a guilty till you prove yourself innocent thing, so how far should one go to stand their ground of their rights on the case law rulings . ....guess it depends on how much you have to lose/keep vs. price of trip to jail would be my thinking......jail, is it affordable .... I really don't think that there is gonna be much issues ,maybe at first but will pass quickly

 

[nonameisgood]

When people are strong armed for videoing a PD from a public sidewalk, it takes no imagination to envision officers who will not care that something is legal before "rescuing the public from a potential threat"


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[stealthyeliminator]

On the question of how far to go, I'll happily refuse to provide ID... I'll not be committing an offense by doing so, either, regardless of whether or not it turns out they have PC to make an arrest.

As I mentioned earlier, it's absurd to think that an officer could have legitimate PC to arrest when in fact no crime has been committed, but that's what you get with BS rulings and bad law making.

TLS is basing their statements on a case out of, I think it was Houston, where a judge treated the non-applicability section as defenses to prosecution as opposed to, well, non-applicability. If you go back and look at where the non-applicability section was restored, though, you will see that the legislature restored the non-applicability section from being in the statutes as defenses, so it seems abundantly obvious to me that it is intended to function as more than simply defenses to prosecution. In my opinion the judge that ruled contrary was obviously and egregiously incorrect in his assessment - legislating from the bench. It seemed apparent to me that he wanted to railroad a conviction, rights and constitution and logic be damned. Hmm where else have we seen that? Yep, CJ Grisham case, among many, many others I'm sure.

 

[sudden valley gunner]

I don't have the statute handy so if I may paraphrase?
The law in Tenn. isn't that carrying without a license is illegal, the law is that carrying is illegal and having the license is a defense. So, mere observation of a firearm gives a reasonable suspicion that it's being carried and that it's illegal.

Usually, there are two ways these things can be written into the law:
1) As is usually the case with driver's licenses, it's a requirement to have a license to drive on public roads; which would require some suspicion that a license was not present before one could be pulled over to check.
and
2) "It is illegal to do X, unless the person meets the exceptions in a) b) or statute 123.66" , which only requires observation of the act to suspect illegality.

[edit]

I can see legislatures trying to make that the case. I definitely see cops interpreting it that way.

They still can't get past the part that is legal with the proper papers. Something they cannot tell by mere observation one has or doesn't have.

Although the law may specifically state a must as you are saying, would it meet constitutionally scrutiny?

 

[stealthyeliminator]

Yeah, the way I see it, the sum of the law is the same. If you're carrying with the license, you aren't breaking the law. If you are carrying without the license, you're breaking the law. That's the sum of it regardless of how it's phrased, or which phrase is before the other in statute.

You could potentially make the same case they're making about the licensing about carrying on your own property - it basically says it's generally unlawful, but if you are on your property then it isn't. You could pretty easily make the case that it's just as much "an exception" to the "general rule" as the non-applicability section. IMO what it boils down to is an assumption of guilt, they're basically just saying that because of how the law is phrased it's ok to violate the constitution and presume guilt. Common sense tells me that if there are to be many cases where guilt isn't the case then guilt shouldn't be presumed.

 

[Fallschirjmäger]

True, the 'sum' is the same.
How one arrives there differs however, and one way gives RAS upon suspicion/knowledge of a firearm and the other way gives RAS upon suspicion/knowledge that a license does not exist.

I'm not saying that Texas law enforcement will attempt to enforce the new law in any special manner, but I have seen more than a few officers from Tenn. write that the mere sight of an openly carried firearm is all the RAS they require to investigate a crime. And, they are correct, it does as that is the way the law is written.

Speaking of which, anyone have a handy link to the final version?

 

[nonameisgood]

http://www.capitol.state.tx.us/tlodocs/84R/billtext/pdf/HB00910F.pdf


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[stealthyeliminator]

True, the 'sum' is the same.
How one arrives there differs however, and one way gives RAS upon suspicion/knowledge of a firearm and the other way gives RAS upon suspicion/knowledge that a license does not exist.

I'm not saying that Texas law enforcement will attempt to enforce the new law in any special manner, but I have seen more than a few officers from Tenn. write that the mere sight of an openly carried firearm is all the RAS they require to investigate a crime. And, they are correct, it does as that is the way the law is written.

Speaking of which, anyone have a handy link to the final version?

If the terrible ruling and you are correct, what that really means is that an officer has PC to arrest without question (they have no obligation to check if you have a license before making an arrest) immediately upon sight of anyone openly carrying a handgun, even including other uniformed police officers. According to the ruling the officer has no obligation to "rule out" any of those exemptions in the non-applicability section, the first of which is the exemption for LEOs.

If the conditions listed in 46.02 itself that "exclude" from offense must be ruled out, then the officer would have to rule out that one is not on their own property or en route to their vehicle. I doubt that'll even enter their minds.

Here are some things that the legislature had to say about restoring 46.15, the non-applicability section: "This legislation would return the statute to pre-1993 status by reinstating the "non-applicable" language and providing exceptions to the offense of unlawful carrying a weapon, rather than making the same circumstances an affirmative defense to prosecution." "This could help prevent erroneous arrests of persons who are legally carrying a weapon and avoid making them prove that they were not breaking the law."

 

[Johnbo]

Here in Georgia leo could not stop you without a reasonable articuable suspicion since open carry (and concealed) is legal with a georgia weapons license. The act of carrying is not ras for a stop; no more than they can stop people to see if the ipod they are listening to is "theirs". A number of leo still insisted on harassing and stopping lawfully carrying citizens, and there is no "must show ID" law in Georgia. These leo got sued in court against the city/municipality and lost every time to the tune of 30k-40k dollars each time. Last year Georgia legislature passed a law saying leo can NOT stop a weapon-carrying person if that person has commited no crime. Cause and effect. If they harrass and stop you in Texas without ras then sue them every time. Since open carry is legal with a permit in Texas then they can not stop you just to check without just cause. A number of Texas leo are going to find out the hard way.