"Cop-Stop" Language Stripped From Texas Open Carry Bill

http://www.texastribune.org/2015/05/...ents/?c=233318

SNIP

A controversial provision, which law enforcement officials have said would allow criminals to carry firearms without repercussions, has been removed from a key gun bill, lawmakers confirmed Thursday.

Without the language limiting the power of police officers to ask those openly carrying guns to present their permits, the legislation allowing license-holders to openly carry handguns is expected to have the votes to pass both chambers.

"The Dutton/Huffines amendment is dead," said state Rep. Alfonso "Poncho" Nevárez, an Eagle Pass Democrat who took part in the negotiations over House Bill 910." There's nothing more to do. That was the only bit of housekeeping on the bill that was to be had. It's a done deal, for all intents and purposes."

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Commentary from Mike Stollenwerk, co-founder, OpenCarry.org:

"While I'm glad that removal of the "cop stop" provision paves the way for approval of the open carry bill, as well as presumably the campus carry bill which will be attached as a rider to the open carry bill, removal of the "cop-stop-block-amendment" to the statutory language of the Texas open carry bill does not alter the fact that the 4th Amendment prohibits the same police conduct - suspicion-less seizure of open carriers - that some legislators sought to explicitly prohibit via statutory language," says Mike Stollenwerk, co-founder of OpenCarry.org.

"Removal of the open carry protection language preventing the police from randomly demanding open carriers to present gun carry permits will just lead to lawsuits against the police and taxpayer costs to settle the lawsuits. The Fourth Amendment's prohibition on unreasonable search and seizure has been construed by the US Supreme Court to forbid police seizure of persons unless the police at least have 'reasonable articulable suspicion' that crime is afoot. In the matter of police checking of licenses, the Supreme Court held in Delaware v. Prause that '[e]xcept where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.' Applying this construction of law to open carriers - in the minority of states where a license is required to open carry - means that the police violate the constitution if they seize open carriers just to see their license. The now-stricken amendment to the Texas open carry statute would have actually kept the police out of trouble and saved taxpayers the cost of damages and legal fees when aggrieved open carriers sue under the federal civil rights act at 42 USC 1983. Unless the Texas Attorney General and police chiefs conduct extra training for police, police officers will no doubt mistakenly think they can demand to see permits from every open carrier, leading to violations of Fourth Amendment rights, costs for taxpayers, and pay days for lawyers," added Stollenwerk.

Hey Mike I'm getting a dead link for that article. Great interview nonetheless. If anything, I think stripping this amendment at this stage will lead to more unlawful detentions than if it had not been in the bill at all.

it may be better without that amendment. let them stop a law abiding citizen. it'll just lead to court rulings in favor of liberty.

I was reading the comments and saw one that suggested swatting open carriers. These fools can get violent.

MSG Laigaie said:

I was reading the comments and saw one that suggested swatting open carriers. These fools can get violent.

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Who thinks it is a good idea to aggravate the guy with the gun on his hip?
When on my motorcycle, most drivers stay away from me in traffic. I think it is out of fear that they will inadvertently cause me injury, since I do not ride erratically nor particularly fast or slow. And then there are the other kind of folks. I think the same will come from OC. Most will treat carriers with benign neglect, some will run in fear, and some will feel the need to evangelize on the merits of being unarmed. Heck, we even have folks telling firefighters that they should not be driving fire apparatus to the grocery store... actually going up to them and angrily arguing about this. Some people are simply erratic and irrational.

nonameisgood said:

Who thinks it is a good idea to aggravate the guy with the gun on his hip?
When on my motorcycle, most drivers stay away from me in traffic. I think it is out of fear that they will inadvertently cause me injury, since I do not ride erratically nor particularly fast or slow. And then there are the other kind of folks. I think the same will come from OC. Most will treat carriers with benign neglect, some will run in fear, and some will feel the need to evangelize on the merits of being unarmed. Heck, we even have folks telling firefighters that they should not be driving fire apparatus to the grocery store... actually going up to them and angrily arguing about this. Some people are simply erratic and irrational.

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You must be unfamiliar with the term "swatting." It's when people call in false threats to get the police to show up, guns drawn. This actually happened quite a bit recently to gamers who would live-stream and some kid would call in a bomb threat or something and you would see the police raiding them while they were streaming live. If you look it up on Youtube there's plenty examples of this.

Something similar happened to the open carrier that ended up getting tased by police when he was walking around in San Antonio. Someone called in saying he was pointing his rifle at people and the police showed up. I'm not sure what came of that case, but he had a video recorder going the whole time he was carrying. This is why audio/video recording is going to be so important especially in the beginning. Things like swatting happens and crazy people will call in and lie to 911 operators. I sincerely hope the police go after these callers because they are putting lives in danger.

nonameisgood said:

Who thinks it is a good idea to aggravate the guy with the gun on his hip?
When on my motorcycle, most drivers stay away from me in traffic. I think it is out of fear....

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You're a powderpuff - everyone in Texas KNOWS all of the bad motorcycle guys are in Waco jail with a $1musd bond....

I'm ATGATT on a dual sport, so I'm NOT part of that ilk.


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I am trying to figure out a solution for our complete and utter inability to stay on topic within a thread.... This inability to focus is endemic to Texas! It is reflected in our legislature, in our very slow speech and even slower thinking..... I know we are all busy building the Arc or at least should be...... which reminds me: what is this thread all about?

Count said:

I am trying to figure out a solution for our complete and utter inability to stay on topic within a thread.... This inability to focus is endemic to Texas! It is reflected in our legislature, in our very slow speech and even slower thinking..... I know we are all busy building the Arc or at least should be...... which reminds me: what is this thread all about?

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In the grand scheme of things does it really matter? We have 4 threads on the same topic.

The whole thing is amazing. If the cop apologists were right, the cop unions would have shrugged. But, they are a legal street gang. It's true, and no amount of moderation can conceal this fact from the people. Grapeshot must be fuming!

One time I had the police called on me while openly carrying a rifle in a restaurant. The police did come, but they walked right by me and everyone else with rifles, and informed the other patrons of the restaurant that our demonstration was legal, offering to answer any questions. They shook our hands before they left. They never asked for ID, they did not ask if we were felons, they did not ask if we were of age.

Another time an officer who I believe was new to the area approached a group of LGOCers while we were getting ready for a demonstration, and asked for ID to verify that we weren't felons. After a brief and relatively cordial disagreement on what the the law was and allowed, a couple of asked if we were free to leave, and we were informed that we were. We walked away without providing ID.

The point of these stories is that, I believe in many places in Texas, officers already know the applicable laws, and they already respect the rights of individuals to carry within the bounds of the law [no implications intended as to whether or not law is subordinate to right, please don't try to read between the lines]. So, I suspect that in many places around Texas, we will not see issues. I believe that if we are likely to see issues, it will probably be in the areas that we've had issues with LGOC, which, unless I'm mistaken, has been a relatively limited set of locations.

On the note of activist response to infringements, I have a feeling it will be easier to draw a crowd of HGOCers than it has been to draw a crowd of LGOCers. And when there have been infringements, we've drawn crowds of LGOCers. So if there are infringements involving HGOC, I suspect we'll be more than able to draw a lot of support to curb that infringement. But, I could be wrong. We'll see. Happy the bill passed, I look forward to that new stage in my OC journey.

+1 on HGOC attendance.


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stealthyeliminator said:

On the note of activist response to infringements, I have a feeling it will be easier to draw a crowd of HGOCers than it has been to draw a crowd of LGOCers. And when there have been infringements, we've drawn crowds of LGOCers. So if there are infringements involving HGOC, I suspect we'll be more than able to draw a lot of support to curb that infringement. But, I could be wrong. We'll see. Happy the bill passed, I look forward to that new stage in my OC journey.

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Absolutely. I'll be interested to see how common it will be. Our only real example of recent legalization is Oklahoma, and it's rarely exercised.

77zach said:

Absolutely. I'll be interested to see how common it will be. Our only real example of recent legalization is Oklahoma, and it's rarely exercised.

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Texas subforum will finally get its own "Open Carry Experiences" thread like the other OC states

77zach said:

Absolutely. I'll be interested to see how common it will be. Our only real example of recent legalization is Oklahoma, and it's rarely exercised.

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Considering that everyone I know says, "Open carry is fine, but I'll never carry openly" or "that's too dangerous", I think you are correct. People lack the imagination required to think, "I can finally tuck in my shirts and wear pants that actually fit."


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Need to take that Virginia Tuck and Texanize it...


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In regard to 4th amendment

There's been some talk about this "Cop-stop" amendment to the "Open Carry" law being not necessary due to the 4th amendment to the Constitution. That may well be true, but it depends on the wording of the CHL and "open carry" law.

If the CHL is an affirmative defense, then the 4th amendment does not apply, since having the gun, provides all the probable cause that the cop needs to arrest you. You can present the CHL as a defense, when you go to trial.

If the lack of a CHL is an element of the crime, then the 4th amendment applies and the arresting officer has to have a probable cause to believe that you don't have a CHL(like telling the cop that you don't have a CHL).

So instead of saying out-right that cops can't stop open carrying person to check a license, the legislature should have simply changed the law to make the CHL or lack thereof an element of the crime, like it was done in Georgia a few years ago.

This way, the law enforcement groups won't get all hot and bothered in regard to an explicit stripping of their powers, and we, "the people" will also get what we want.

Just a suggestion.

janus said:

There's been some talk about this "Cop-stop" amendment to the "Open Carry" law being not necessary due to the 4th amendment to the Constitution. That may well be true, but it depends on the wording of the CHL and "open carry" law.

If the CHL is an affirmative defense, then the 4th amendment does not apply, since having the gun, provides all the probable cause that the cop needs to arrest you. You can present the CHL as a defense, when you go to trial.

If the lack of a CHL is an element of the crime, then the 4th amendment applies and the arresting officer has to have a probable cause to believe that you don't have a CHL(like telling the cop that you don't have a CHL).

So instead of saying out-right that cops can't stop open carrying person to check a license, the legislature should have simply changed the law to make the CHL or lack thereof an element of the crime, like it was done in Georgia a few years ago.

This way, the law enforcement groups won't get all hot and bothered in regard to an explicit stripping of their powers, and we, "the people" will also get what we want.

Just a suggestion.

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Sec. 46.15. NONAPPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer's or investigator's duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) an active judicial officer as defined by Section 411.201, Government Code, who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer, qualified retired law enforcement officer, federal criminal investigator, or former reserve law enforcement officer who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that is issued by a federal, state, or local law enforcement agency, as applicable, and that verifies that the officer is:
(A) an honorably retired peace officer;
(B) a qualified retired law enforcement officer;
(C) a federal criminal investigator; or
(D) a former reserve law enforcement officer who has served in that capacity not less than a total of 15 years with one or more state or local law enforcement agencies;
(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:
(A) licensed to carry a concealed handgun under Chapter 411, Government Code; and
(B) engaged in escorting the judicial officer; or
(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.
(b) Section 46.02 does not apply to a person who:
(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 437.001, Government Code, or as a guard employed by a penal institution;
(2) is traveling;
(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence, motor vehicle, or watercraft, if the weapon is a type commonly used in the activity;
(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person's duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment and is wearing the officer's uniform and carrying the officer's weapon in plain view;
(5) acts as a personal protection officer and carries the person's security officer commission and personal protection officer authorization, if the person:
(A) is engaged in the performance of the person's duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment; and
(B) is either:
(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer's weapon in plain view; or
(ii) not wearing the uniform of a security officer and carrying the officer's weapon in a concealed manner;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun;
(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person's residence and is carrying the weapon unloaded.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this subsection, "nonviolent restraint" means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 437.053, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
(1) a member of the armed forces or state military forces, as defined by Section 437.001, Government Code; or
(2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
(j) The provisions of Section 46.02 prohibiting the carrying of a handgun do not apply to an individual who carries a handgun as a participant in a historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission.

46.02 and 46.03 are UCW and Places Weapons Prohibited. The defense to prosecution scheme doesn't apply.....