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Thread: "Show me your carry papers!"

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    Regular Member ICBM's Avatar
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    "Show me your carry papers!"

    Waco (January 4, 2016) A New Year means a new law for gun owners.

    As of Jan. 1 the more than 800,000 handgun license owners will now be able to carry their firearms openly as long as it is in a hip or shoulder holster.

    However many city officials and law enforcement officials are bracing for lawsuits due to the law's ambiguity.

    The state has left much of the interpretation of the law up to local authorities.

    "Right now the attorney general's ruling on that, there's a lot of gray area," said Sgt. Patrick Swanton of the Waco Police Department.

    Specifically, one of the gray areas and most debated in the last legislative session: whether police officers can ask those visibly carrying guns to present their permits.

    "What we're trying to do is be responsible about who we approach," Swanton said.

    With the law being so ambiguous, many cities including Waco are leaving it up to the officers discretion.

    "That has not gone through a court process yet whether or not an officer has a right to ask you for your hand gun permit or not," Swanton said.

    Josh Tetens, a Waco Criminal Defense Attorney with Simer and Tetens said local authorities will end up wrestling with decisions because of the vagueness of the law.

    "Obviously, that can be abused like any other law," Tetens said.

    Texas is the 45th state to enact an open carry law and Tetens said like other states it won't be long before the law gets more specific as lawsuits are filed and cases heard.

    "With any new law there's going to be some vetting some gray areas and we will get down to the nitty gritty in time," Tetens said.
    Above from KWTX.com

    So, in your new state law, the legislator has decided that carrying a gun openly waives your 4th Amendment rights, which it does not. I hope all you guys refuse to provide your permits to police who stop you unjustifiably. As an Indiana resident, I've brought up this issue on the IN board, and have even found relevant case law that would back my argument.

    There is no state law that would require you to present ID and/or permit JUST for carrying a weapon. They can not perform an "arrest" to investigate if you've committed a crime without reasonable suspicion or probable cause. Some think an "arrest" only occurs when they put cuffs on you. This is not correct. Remember; an arrest is when you are stopped by police either physically (even a simple touch), an act where a person feels like they are not allow to leave, like an officer activating his emergency lights and pulling you over or next to you on the sidewalk, or any other act that reasonably makes you feel detained or not free to leave.

    Once again, I hope if you're stopped that you all refuse to ID yourselves, unless they cite a ordinance or statute you have violated.

    "Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states."
    Last edited by Grapeshot; 01-27-2016 at 07:33 AM. Reason: removed exclamation mark

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    I've wondered about this myself, from this angle: "If open carry is illegal without a permit, isn't the act of open carry PC for a crime until the permit is shown?"

    For awhile, I would have said yes. However, compare it to a similar circumstance: driving a vehicle on a highway. That act is illegal without a valid driver's license, yet police cannot stop a driver simply to check the license.

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    Regular Member solus's Avatar
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    OP you might wish to peruse the texas thread...gaggles of stuff and heavy discussion there on this subject...

    there is a tx mandate requiring those with a permit to show their permit when a nice LE requests it...xxx.205

    ipse
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    Regular Member qednick's Avatar
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    Quote Originally Posted by solus View Post
    OP you might wish to peruse the texas thread...gaggles of stuff and heavy discussion there on this subject...

    there is a tx mandate requiring those with a permit to show their permit when a nice LE requests it...xxx.205

    ipse
    But there is no penalty prescribed for refusing to comply.

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    Regular Member solus's Avatar
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    ged, was trying, w/o success, to redirect this OP to read all the other comments on all the other threads saying the same thing...

    sigh...

    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    Regular Member qednick's Avatar
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    Quote Originally Posted by solus View Post
    ged, was trying, w/o success, to redirect this OP to read all the other comments on all the other threads saying the same thing...

    sigh...

    ipse
    Sorry...there was no link

    Did you mean this thread: http://forum.opencarry.org/forums/sh...en-carry-rules

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    Regular Member CrossFire's Avatar
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    Quote Originally Posted by qednick View Post
    But there is no penalty prescribed for refusing to comply.
    I believe that the penalty will come when the cop busts you and takes you to jail.

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    Regular Member ICBM's Avatar
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    Quote Originally Posted by qednick View Post
    Sorry...there was no link

    Did you mean this thread: http://forum.opencarry.org/forums/sh...en-carry-rules
    His question was retaining mainly to holster specifics and laws of surrounding states. I didn't mean to dupe a thread topic :/
    Last edited by ICBM; 01-05-2016 at 01:49 PM.

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    Regular Member qednick's Avatar
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    Quote Originally Posted by ICBM View Post
    His question was retaining mainly to holster specifics and laws of surrounding states. I didn't mean to dupe a thread topic :/
    Start half way into the thread. Goes off on a tangent but covers your topic in depth

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    Regular Member ICBM's Avatar
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    Quote Originally Posted by qednick View Post
    Start half way into the thread. Goes off on a tangent but covers your topic in depth
    Fair enough. I didn't read through the thread enough. But I think this specific question needs to be the priority of the thread and not just a spin-off/side topic.

    Can police stop you to check your permit?

    I resoundingly say, NO.

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    Quote Originally Posted by CrossFire View Post
    I believe that the penalty will come when the cop busts you and takes you to jail.
    A cop can bust you and take you to jail for any thing, reason or not, that he wishes. Felonious mopery with intent to gawp is a perfectly adequate charge on a ticket. You may beat the rap but you will not beat the ride.
    I am responsible for my writing, not your understanding of it.

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    Regular Member ICBM's Avatar
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    Quote Originally Posted by Nightmare View Post
    A cop can bust you and take you to jail for any thing, reason or not, that he wishes. Felonious mopery with intent to gawp is a perfectly adequate charge on a ticket. You may beat the rap but you will not beat the ride.
    Yes but the department and possibly officer pay out on such arbitrary arrests;

    In Gardner v. Federal Department Stores, supra, at 1353, the Second Circuit held that $50,000 was reasonable compensation for approximately 8 hours in custody, or $6250 per hour.

    In Musto v. Arakel, 584 N.Y.S.2d 812, 813 (N.Y. App. 1st Dep’t 1992) (mem.), the First Department held that $60,000 was reasonable compensation for a false arrest (time in custody not given by court in decision).

    In Roundtree v. City of New York, 617 N.Y.S.2d 170, 171 (N.Y. App. 1st Dep’t 1994) (mem.), the First Department held that $200,000 was reasonable compensation for approximately 84 hours in custody, or $2381 per hour.

    In Mercado v. City of New York, 703 N.Y.S.2d 283, 283 (N.Y. App. 2d Dep’t 2000) (mem.), the Second Department affirmed the jury’s verdict that $120,000 was reasonable compensation for a false arrest (time in custody not given by court in decision).

    In Martinez v. Port Authority of New York and New Jersey, 445 F.3d 158, 160-161 (2d Cir. 2006) (per curiam), the Second Circuit affirmed the lower court’s ruling that $160,000 was reasonable compensation for approximately 19 hours in custody, or $8421 per hour.

    In Sylvester v. City of New York, 2006 WL 3230152, at *4 (S.D.N.Y. Nov. 8, 2006), the district court affirmed the jury’s verdict that $30,000 was reasonable compensation for “several hours” in custody at precinct (specific time in custody not given by court in decision).

    In Landow v. Town of Amherst, 853 N.Y.S.2d 760, 761 (N.Y. App. 4th Dep’t 2008) (mem.), the Fourth Department affirmed the lower court’s ruling that $10,000 was reasonable compensation for approximately 4 hours in custody, or $2500 per hour.
    - From Warshawskylawfirm.com

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    Regular Member CrossFire's Avatar
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    Quote Originally Posted by ICBM View Post
    Yes but the department and possibly officer pay out on such arbitrary arrests;


    - From Warshawskylawfirm.com
    I believe that you would be more likely to be arrested for something like "disorderly conduct" than refusing to show your papers.
    Last edited by CrossFire; 01-05-2016 at 02:54 PM.

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    Regular Member qednick's Avatar
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    Quote Originally Posted by Nightmare View Post
    A cop can bust you and take you to jail for any thing, reason or not, that he wishes. Felonious mopery with intent to gawp is a perfectly adequate charge on a ticket. You may beat the rap but you will not beat the ride.
    +1

    If a cop doesn't like the look of you, he'll likely ask for your papers. If you don't comply, he'll likely find some "contempt of cop" charge to sling at you and haul you off in handcuffs. There is an existing statute (re: concealed carry laws) which says you should show both your CHL/LTC and other ID when asked. But there is no penalty for refusing. So there's a law but it doesn't have teeth. However, this does not mean the LEO will not arrest you and you'll subsequently have to argue your case in court.

    Whether this happens, and whether someone files suit against a TX LE agency, remains to be seen. Honestly, I guess all us TX folk are waiting on this one to find out. The question remains, which LEO/LE agency and OC'er are going to make the test case for Texas.

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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by solus View Post
    OP you might wish to peruse the texas thread...gaggles of stuff and heavy discussion there on this subject...

    there is a tx mandate requiring those with a permit to show their permit when a nice LE requests it...xxx.205

    ipse
    lol I was just sitting here thinking... I really don't want to have to rehash this... OP is sort of right that it sucks the other conversation is buried in another thread though.
    Quote Originally Posted by qednick View Post
    +1

    If a cop doesn't like the look of you, he'll likely ask for your papers. If you don't comply, he'll likely find some "contempt of cop" charge to sling at you and haul you off in handcuffs. There is an existing statute (re: concealed carry laws) which says you should show both your CHL/LTC and other ID when asked. But there is no penalty for refusing. So there's a law but it doesn't have teeth. However, this does not mean the LEO will not arrest you and you'll subsequently have to argue your case in court.

    Whether this happens, and whether someone files suit against a TX LE agency, remains to be seen. Honestly, I guess all us TX folk are waiting on this one to find out. The question remains, which LEO/LE agency and OC'er are going to make the test case for Texas.
    You are right, but, to go to court you'll have to be charged with something (of course). Honestly I'd be a little surprised if an arrest for not IDing ever made it to court. I'm not going to help out bad prosecutors by speculating what they might charge one with, lol. But suffice to say, I'm not aware of anything that you would actually be in violation of.


    Of course, I'm not a lawyer.
    Last edited by stealthyeliminator; 01-05-2016 at 03:28 PM. Reason: IANAL
    Advocate freedom please

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    Regular Member qednick's Avatar
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    Quote Originally Posted by stealthyeliminator View Post
    lol I was just sitting here thinking... I really don't want to have to rehash this... OP is sort of right that it sucks the other conversation is buried in another thread though.


    You are right, but, to go to court you'll have to be charged with something (of course). Honestly I'd be a little surprised if an arrest for not IDing ever made it to court. I'm not going to help out bad prosecutors by speculating what they might charge one with, lol. But suffice to say, I'm not aware of anything that you would actually be in violation of.


    Of course, I'm not a lawyer.
    Well, a "contempt of cop" charge could be almost anything...most usually disorderly conduct. For me personally, I don't want to be a test case. If the circumstances are reasonable and I'm asked to show my papers, I would probably do so. However, if it's a clear case of harassment, I would probably refuse. It depends on the totality of the circumstances.

    I've read a few news articles recently that reflect this "gray area". Prior to just a few days ago, all the media were stating as a fact that LE can demand to see the permit without good cause simply because you're OC'ing.

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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by qednick View Post
    Well, a "contempt of cop" charge could be almost anything...most usually disorderly conduct. For me personally, I don't want to be a test case. If the circumstances are reasonable and I'm asked to show my papers, I would probably do so. However, if it's a clear case of harassment, I would probably refuse. It depends on the totality of the circumstances.

    I've read a few news articles recently that reflect this "gray area". Prior to just a few days ago, all the media were stating as a fact that LE can demand to see the permit without good cause simply because you're OC'ing.
    You are right - to be honest, I don't really know where I was going with that. Sometimes when I'm in a rush, I just ramble a bit.
    Advocate freedom please

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    Regular Member solus's Avatar
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    i'm sorry, but ya'll have been shown from multiple sources in other threads the nice DPS peace officers can and will stop citizens per .205.

    you can hop on one leg hoping the nice peace officer won't 'detain' your silly OC'g butts and if you cop any type of BS attitude...you will enjoy the ride...

    OP, stealth, Ged, ad nauseam...step out and be the live guinea pig test case...but ya'll know deep in your hearts ya'll are hosed if the nice peace officer wishes to screw with you as you contritely surrender your concealed permit saying 'here ya go SIR'!

    give the bloody subject a break would ya, cuz any way you may wish upon a star it isn't so, rehash it, regurgitate the material, or turn the subject inside out...bottom line, as nightmare stated: quote: A cop can bust you and take you to jail for any thing, reason or not, that he wishes. unquote.

    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    Regular Member qednick's Avatar
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    Quote Originally Posted by solus View Post
    i'm sorry, but ya'll have been shown from multiple sources in other threads the nice DPS peace officers can and will stop citizens per .205.

    you can hop on one leg hoping the nice peace officer won't 'detain' your silly OC'g butts and if you cop any type of BS attitude...you will enjoy the ride...

    OP, stealth, Ged, ad nauseam...step out and be the live guinea pig test case...but ya'll know deep in your hearts ya'll are hosed if the nice peace officer wishes to screw with you as you contritely surrender your concealed permit saying 'here ya go SIR'!

    give the bloody subject a break would ya, cuz any way you may wish upon a star it isn't so, rehash it, regurgitate the material, or turn the subject inside out...bottom line, as nightmare stated: quote: A cop can bust you and take you to jail for any thing, reason or not, that he wishes. unquote.

    ipse
    Well we were all kinda hoping you'd make it over to the lone star state and be the test case for us.

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    Regular Member solus's Avatar
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    Quote Originally Posted by qednick View Post
    Well we were all kinda hoping you'd make it over to the lone star state and be the test case for us.
    sorry, i am already on OCOD forum record to have volunteered back in Nov to engage in a gathering of like minded Texas OC'g citizens but was told naw'll...

    so guess you will have to take my place, better yet...ya'll do the trio concept...you, stealthy and get ICBM down from the Hoosier state to step up to the challenge.

    ipse

    ps don't forget to set up a gofund me website...
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by jfrey123 View Post
    I've wondered about this myself, from this angle: "If open carry is illegal without a permit, isn't the act of open carry PC for a crime until the permit is shown?"

    For awhile, I would have said yes. However, compare it to a similar circumstance: driving a vehicle on a highway. That act is illegal without a valid driver's license, yet police cannot stop a driver simply to check the license.
    I was speaking with a law student the other day and (according to him/his professors) there are (in general) two ways laws can be written. I'll use semi-ludicrous examples to make the point....
    1) It is illegal to eat a ham sandwich on Sunday without obtaining a tax stamp.
    2) Anyone eating a ham sandwich on Sunday must have a valid tax stamp.

    Example one provides RAS simply by the mere observation of seeing a ham sandwich being eaten (It is illegal to....) whereas in the second one must suspect that a tax stamp is somehow not present in order to have RAS.

    If one looks at most (can't say all) traffic laws, the requirement is that all drivers must have a valid license not that driving on the roads is illegal without having a license.

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    Regular Member ICBM's Avatar
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    Quote Originally Posted by solus View Post
    sorry, i am already on OCOD forum record to have volunteered back in Nov to engage in a gathering of like minded Texas OC'g citizens but was told naw'll...

    so guess you will have to take my place, better yet...ya'll do the trio concept...you, stealthy and get ICBM down from the Hoosier state to step up to the challenge.

    ipse

    ps don't forget to set up a gofund me website...
    Wish I could, honestly. Wouldn't need a "gofundmybrokeass" to do it though

    That's for the people of Texas to fight. Never had trouble myself in the North. But if that scenario were to happen, then I would of course fight it as described. We also have a statute that defines a hefty civil recovery from officers who don't follow carry laws (X3 times court costs), so they have much more reason to follow the law.

    Never be afraid to be the first into the breach!

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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by solus View Post
    i'm sorry, but ya'll have been shown from multiple sources in other threads the nice DPS peace officers can and will stop citizens per .205.

    you can hop on one leg hoping the nice peace officer won't 'detain' your silly OC'g butts and if you cop any type of BS attitude...you will enjoy the ride...

    OP, stealth, Ged, ad nauseam...step out and be the live guinea pig test case...but ya'll know deep in your hearts ya'll are hosed if the nice peace officer wishes to screw with you as you contritely surrender your concealed permit saying 'here ya go SIR'!

    give the bloody subject a break would ya, cuz any way you may wish upon a star it isn't so, rehash it, regurgitate the material, or turn the subject inside out...bottom line, as nightmare stated: quote: A cop can bust you and take you to jail for any thing, reason or not, that he wishes. unquote.

    ipse
    I specifically said I didn't want to rehash... Not sure why you all of a sudden felt the need, given you were able to retrain yourself with your first post.

    I see you are still hanging onto government code 411.205, despite having been a participant in the other thread. Let's rehash, since you have apparently decided you need to. The controversy is not over GC 411.205, solus. Not even the lawyers are really bickering about 411.205. The controversy is over the relationship between and proper application of penal code 46.02 and 46.15.
    Advocate freedom please

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    Regular Member solus's Avatar
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    Quote Originally Posted by ICBM View Post
    Above from KWTX.com

    So, in your new state law, the legislator has decided that carrying a gun openly waives your 4th Amendment rights, which it does not. I hope all you guys refuse to provide your permits to police who stop you unjustifiably. As an Indiana resident, I've brought up this issue on the IN board, and have even found relevant case law that would back my argument.

    There is no state law that would require you to present ID and/or permit JUST for carrying a weapon. They can not perform an "arrest" to investigate if you've committed a crime without reasonable suspicion or probable cause. Some think an "arrest" only occurs when they put cuffs on you. This is not correct. Remember; an arrest is when you are stopped by police either physically (even a simple touch), an act where a person feels like they are not allow to leave, like an officer activating his emergency lights and pulling you over or next to you on the sidewalk, or any other act that reasonably makes you feel detained or not free to leave.

    Once again, I hope if you're stopped that you all refuse to ID yourselves, unless they cite a ordinance or statute you have violated.

    "Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states."
    Quote Originally Posted by stealthyeliminator View Post
    I specifically said I didn't want to rehash... Not sure why you all of a sudden felt the need, given you were able to retrain yourself with your first post.

    I see you are still hanging onto government code 411.205, despite having been a participant in the other thread. Let's rehash, since you have apparently decided you need to. The controversy is not over GC 411.205, solus. Not even the lawyers are really bickering about 411.205. The controversy is over the relationship between and proper application of penal code 46.02 and 46.15.
    sorry stealthy...as you can see, the OP's original post was about quote: no state law, don't have to show your permit, citing an ordinance or statute you have violated unquote

    vainly tried to redirect the OP to the texas threads, nope...

    now twenty three posts later, you have diverged this to 'the proper application of a penal code'.

    shaking my head in wonder...

    ipse

    added...do you disagree with nightmare's assessment?
    Last edited by solus; 01-05-2016 at 07:02 PM.
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

  25. #25
    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    I was speaking with a law student the other day and (according to him/his professors) there are (in general) two ways laws can be written. I'll use semi-ludicrous examples to make the point....
    1) It is illegal to eat a ham sandwich on Sunday without obtaining a tax stamp.
    2) Anyone eating a ham sandwich on Sunday must have a valid tax stamp.

    Example one provides RAS simply by the mere observation of seeing a ham sandwich being eaten (It is illegal to....) whereas in the second one must suspect that a tax stamp is somehow not present in order to have RAS.

    If one looks at most (can't say all) traffic laws, the requirement is that all drivers must have a valid license not that driving on the roads is illegal without having a license.
    Neither of those seem to be analogous to our scenario here in Texas, in my opinion

    Our scenario is more like:

    Section 1: A person commits an offense if they eat a ham sandwich
    Section 2: Section 1 doesn't apply if it is Monday, Tuesday, Wednesday, Thursday, Friday, or Saturday

    I'd love to know what they say about that one.

    BTW, I believe our DL statute basically uses language generally along the lines of "A person may not drive unless they have a license" which seems to have a negative tone more analogous to the first example than the second. But I could be wrong.
    Advocate freedom please

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