My understanding is that it is case law, and not by statutes. In addition to the above cited, TX does not allow for things like that to be applied if they are not specifically called out by other law. One similar issue is DWI checkpoints where Texas has determined that it is unconstitutional to have them and to conduct random stops, and so they are not authorized in Texas (see 887 S.W.2d 16 (Tex. Crim. App. 1994).
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TLS Edwin Walker says Texans will be required to ID on demand
- Thread starter stealthyeliminator
- Start date
My understanding is that it is case law, and not by statutes. In addition to the above cited, TX does not allow for things like that to be applied if they are not specifically called out by other law. One similar issue is DWI checkpoints where Texas has determined that it is unconstitutional to have them and to conduct random stops, and so they are not authorized in Texas (see 887 S.W.2d 16 (Tex. Crim. App. 1994).
nonameisgood
Regular Member
Which seems to have been all the more reason then to have had it directly included with HB 910.
SteveInCO
Regular Member
Judging from my experience with them, your response will be a one liner blowing you off, followed by a lengthy sales pitch.
California Right To Carry
Regular Member
Do you have any 5th Circuit Federal case law or Texas case law supporting your position? If you don't then police will be free to stop and demand to see your permit until the 5th Circuit or a Texas state court says they cannot. Any lawsuit will be dismissed because the courts will say that the police have qualified immunity and, of course, those dismissals will not settle the constitutional questions. For that, you'll need to find a police officer who said he will stop people he see's openly carrying handguns, demand to see their permit and then file a lawsuit seeking an injunction.
WalkingWolf
Regular Member
Terry V Ohio, a legally carried firearm is not RAS of a crime, and it has not been ruled as RAS of a crime in Texas. Outside that, the constitution is my citation, I am surprised coming from you don't recognize the constitutional ramifications.
California Right To Carry
Regular Member
I understand the constitutional ramifications all too well. The problem is you do not have the faintest clue as to how the courts work. Terry v. Ohio was a concealed carry case and it is a SCOTUS decision. I'll ask again. What 5th Circuit or Texas state decision has held that the sight of one openly carrying a handgun constitutes neither reasonable suspicion nor probable cause?
Feel free to provide the pinpoint citations to the 5th Circuit and Texas case law which supports your position. Keep in mind that I said "openly carrying a handgun." Concealed carry case law is not relevant.
WalkingWolf
Regular Member
Unless a state has a ID statute, and even then there must be RAS. I am not a lawyer, but are you? The OC law passed in Texas has no ID stipulation. Per Terry a stop is illegal unless there is RAS, EVEN if the person is unarmed, or wearing a pink tutu.
I gave you my cites, NOW you give me yours?
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California Right To Carry
Regular Member
I have a California state citation which says that the sight of a firearm in a prohibited place (a place where it is illegal to carry a loaded firearm) does not constitute probable cause that the firearm is loaded (and therefore in violation of the law prohibiting one from carrying a loaded firearm in a prohibited place) but it is no more relevant to Texas than is Terry v. Ohio to Open Carry in Texas.
One does not need to be a lawyer to understand "qualified immunity." Here is a link to Google Scholar where you can knock yourself out researching the relevant case law in Texas and the Fifth Circuit as it applies to firearms openly carried -> https://scholar.google.com/
Unless and until it is clearly established under either Texas case law or 5th Circuit case law that the mere sight of a person openly carrying a handgun constitutes neither reasonable suspicion nor probable cause then police will be free to stop anyone openly carrying a handgun and demand to see their permit to openly carry a handgun.
One can cite all the cases from other Federal circuits and from other states until one is blue in the face but until a Texas or Federal 5th Circuit judge says the police can't, they can.
That is the way the law works in every Federal circuit and in every state. It is better to educate yourself on the law beforehand as shouting about your rights from behind bars will be as ineffective as suing the police for violating your civil rights when the right you claim has not been clearly established under either Texas or 5th Circuit case law.
nonameisgood
Regular Member
What we need is a way to force our legislators to abide by their own rules and not allow conference committees to go too far. They violated rules of the house and the senate to remove the Dutton/Huffines amendments. But I guess if someone could read and type it would have been voted on properly and passed properly.
Pardon the trip to fantasy land.
We all know that what is going to happen is that officers will ask "do you have a CHL?" without detaining, and depending on the answer and the person's general reaction and appearance, will find cause if they think it's necessary during the "friendly conversation." No different than asking someone's name, and not the same as saying "I need you to show me your CHL!" Speaking of which, what will we call the CHL when it becomes "license to carry", LTC?
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Pardon the trip to fantasy land.
We all know that what is going to happen is that officers will ask "do you have a CHL?" without detaining, and depending on the answer and the person's general reaction and appearance, will find cause if they think it's necessary during the "friendly conversation." No different than asking someone's name, and not the same as saying "I need you to show me your CHL!" Speaking of which, what will we call the CHL when it becomes "license to carry", LTC?
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WalkingWolf
Regular Member
IIRC OC is illegal in California, correct? And IIRC when unloaded OC was legal all the police could do was check to see if the guns were loaded.
Now, how about those cites for Texas?
And of course if you have firearm in a "PROHIBITED" place it would common sense it would be RAS. LMFAO!
And let me help you further seeing you are jumping to conclusions, nobody is suggesting refusing to show ID. They are discussing the legality of it, I assume that most will ask if being detained, then provide ID if yes, then Ka-Ching if no RAS. In a consensual encounter in ALL of the US a citizen does not have to show a damn thing.
I hope you do not intend on going to court to argue for OC with this sort of confusion,.
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stealthyeliminator
Regular Member
If a law is unconstitutional, then it is such for it's entire life-span, beginning to end, not just from the time and forward that it's ruled unconstitutional by a court with jurisdiction. Courts themselves have confirmed this fact.
Police may be able to violate the constitution, but their ability doesn't establish their legality.
ETA: The reason some are saying the police will have PC is because 46.02, which is the prohibition of handgun possession, is left in-tact, with carrying under the authority of the CHL law listed under the non-applicability section, 46.15. They say that for this reason, the "exception" for CHL holders is treated as a defense to prosecution. There is apparently bad case law out of Houston(?) solidifying this error. I believe legislative intent is clear that the non-applicability section was not meant to be treated as merely a defense, because the legislature restored the non-applicability section from the state of defenses, and as an emergency item non-the-less, if I'm not mistaken. In my opinion, it is clear that the non-applicability section was meant to be more than mere defenses to prosecution. I don't know of an easy way to go about researching the legislative intent to know for certain if I'm right or wrong.
Police may be able to violate the constitution, but their ability doesn't establish their legality.
ETA: The reason some are saying the police will have PC is because 46.02, which is the prohibition of handgun possession, is left in-tact, with carrying under the authority of the CHL law listed under the non-applicability section, 46.15. They say that for this reason, the "exception" for CHL holders is treated as a defense to prosecution. There is apparently bad case law out of Houston(?) solidifying this error. I believe legislative intent is clear that the non-applicability section was not meant to be treated as merely a defense, because the legislature restored the non-applicability section from the state of defenses, and as an emergency item non-the-less, if I'm not mistaken. In my opinion, it is clear that the non-applicability section was meant to be more than mere defenses to prosecution. I don't know of an easy way to go about researching the legislative intent to know for certain if I'm right or wrong.
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nonameisgood
Regular Member
Since ALL non-LE, non-traveler open carry here has been illegal for 100 years, so you won't find a Texas court citation. Right now, an openly carried handgun IS grounds for detention and usually arrest.
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WalkingWolf
Regular Member
But when the law takes affect it is no longer illegal. Somehow considering how the other districts have ruled, I doubt that OC is going to be considered RAS. And as I already pointed out, if detained provide ID, then sue.
California Right To Carry
Regular Member
You are the one saying that police cannot stop people openly carrying a handgun. I provided you the link to Google Scholar to do your own research. I have my hands full with my California Open Carry lawsuit.
There is a provision of the 1967 ban which authorizes police to inspect a firearm to see if it is loaded (formerly PC 12031(e) now PC 25850(b)). "Probable cause" does not arise under the statute until one refuses to consent to the inspection. I have a boatload of case law from SCOTUS, the 9th Circuit and from the State of California which holds that consent must be voluntary, it cannot be coerced. The district court judge cited a 1970 California case in which the court analogized the search for drugs to PC 25850(b) (then PC 12031(c)). That was a drug case and a search under the circumstances described in the 1970 decision for illegal drugs is not valid under current California case law. Absent probable cause, a drug courier can tell a police officer to "bugger off" even in the sterile part of an airport. Amusingly, the ACLU had weighed in on that case and the court said that if it had been proven that former PC 12031 had been disproportionately enforced against minorities then it would be unconstitutional. I provided proof that the law is disproportionately enforced against minorities by a factor of 3/1. FYI, proof of disproportionate enforcement is not required in the 9th Circuit.
By default, concealed carry is illegal everywhere in the state of California, even in the home. Concealed carry is by exception.
By default, Open Carry is legal everywhere in the state of California except where it is prohibited. There are only two laws which specifically prohibit the Open Carry of firearms and they exempt firearms manufactured prior to Jan 1, 1899.
The 1967 ban on carrying loaded firearms does not specify whether the firearm is loaded or unloaded but in 1967, because of a statute enacted in 1872, a person could only be punished for openly carrying a loaded firearm in a prohibited place. From 1969 until 2012 California courts punished persons for violating both the concealed carry statutes (which penalize the carrying of concealed handguns, loaded or unloaded, modern or antique). In 2012, the California Supreme Court rediscovered the 1872 statute and held that a person can only be punished for violating one act. In the case of a convicted felon caught carrying a concealed, loaded, unregistered handgun in a prohibited place, the court held that he could only be punished for violating the law which entailed the greatest punishment - felon in possession of a firearm.
This means that PC25850 (formerly PC 12031 in part) can only be applied to people openly carrying loaded firearms in a prohibited place who fall within the scope of the Second Amendment and who are carrying a firearm for the purpose of self-defense that are not otherwise prohibited under state and Federal law. The same is true for the two bans on openly carrying unloaded modern firearms.
For example, a person who is unlawfully carrying a loaded machine-gun or any of the various other prohibited or restricted firearms which requires a permit to transport (in a suitable locked container) such as "assault weapons" as California defines them, cannot be punished for carrying them loaded or openly carrying them unloaded.
PC 25850 and the two unloaded open carry bans exempt hunters and the unloaded open carry bans have a myriad of exceptions for persons who fall within a special interest group such as lawyers.
The prohibitions on Open Carry vary depending upon whether or not one is in an incorporated city or unincorporated county territory where the discharge of a firearm is prohibited. The law does not say who decides or under what circumstances the county prohibitions apply. Los Angeles County, the most populated county in the state has an ordinance saying that its prohibitions on the discharge of firearms do not apply to firearms carried for the purpose of self-defense. Does that mean it is legal to openly carry a loaded firearm in unincorporated county territory in Los Angeles County where one million people live? We don't know. The district court judge in my case would not say. He simply held that Open Carry falls outside the scope of the Second Amendment everywhere in the state, even in places where it is legal. And he cited the Peruta decision which, of course, said no such thing.
When in an incorporated city, it is legal to have unloaded long guns in your motor vehicle (both modern and antique) but because of the ban on openly carrying an unloaded handgun, it is only legal to transport unloaded handguns in fully enclosed locked containers directly to and from a place where it is legal to openly carry a handgun. The ban on openly carrying modern unloaded handguns also applies to unincorporated county territory where the discharge of a firearm is prohibited. The biggest obstacle to carrying firearms in California in populated places is the California gun free school zone act of 1995 which generally prohibits the carrying of handguns, but not long guns within 1,000 feet of a K-12 public or private school (PC 626.9).
Inside of an incorporated city it is legal to openly carry an unloaded antique handgun for the purpose of self defense provided that one does not carry it within 1,000 feet of a K-12 public or private school (or on the school grounds) or in a place where the carrying of any firearm is either prohibited or requires permission from the place or a state issued concealed carry permit (CCW).
Inside of an incorporated city it is legal to openly carry an antique long gun within 1,000 feet of a K-12 public or private school with matching ammunition.
In unincorporated county territory where the discharge of a firearm is prohibited it is legal to openly carry a modern, unloaded long gun within 1,000 feet of a K-12 public or private school with matching ammunition but not on the grounds of the school.
There are various places where the carrying of a firearm is either prohibited or requires a permit or permission such as the secure area of airports, government buildings, school grounds, youth centers, the Capitol grounds, etc.
Given that the unloaded Open Carry bans were written by idiots, they banned the Open Carry of modern unloaded long guns outside of a motor vehicle in incorporated cities within 1,000 feet of a K-12 public or private school unless the person has a permission from the school OR a person has a permit to carry a concealed weapon in which case one does not need permission from the school to openly carry a loaded long gun (modern or antique) within 1,000 feet of a K-12 school or on the grounds of a K-12 school. A CCW holder can carry them loaded, but not unloaded in those locations. The unloaded Open Carry bans exempted most state and local government buildings and so a person with a CCW can carry his loaded, concealed handgun in those government buildings AND openly carry unloaded modern (and antique) handguns and long guns.
The law is vague as to whether or not one with a CCW can openly carry a handgun (loaded or unloaded) within 1,000 feet of a K-12 public or private school and when the law is vague, it is best to assume that it is illegal.
So, in short, I can openly carry any long gun pretty much anywhere in the state (excluding state parks and local ordinances notwithstanding) manufactured in or before 1898 in the state of California or modern firing reproductions of muzzle-loading long guns. Handguns are more heavily restricted, I can openly carry unloaded antique handguns outside of school zones (and outside of places where firearms are generally prohibited) everywhere in the state. And I can openly carry antique and modern handguns and long guns outside of school zones outside of an incorporated city as previously described.
This applies to openly carrying firearms for the purpose of self-defense. Hunters, on the other hand, are fully exempt from all three bans provided they are either hunting or traveling directly to or from their hunting expedition.
California Right To Carry
Regular Member
Not exactly. The Federal courts have long held that unless a decision is made retroactive, convictions for a law which is ultimately held to be unconstitutional are valid (except for the person who successfully challenged his conviction). SCOTUS held in Heller that the Second Amendment right has always existed and that the right is not dependent upon the Second Amendment for its existence. But the Heller court did not make its decision retroactive. It had the opportunity to do so in Lowery v. US and in Masciandaro v. US and probably a hundred other cases but denied cert.
And SCOTUS has held that actual innocence is insufficient grounds for a person to be released from prison or even to prevent his execution.
nonameisgood
Regular Member
I stopped reading that excessive diatribe.
Let's go back to Texas for a minute.
During the house debate on open carry and the ensuing amendments, and in committee, and again in the Senate, the lawmakers clearly stated that it is already unlawful for an officer to detain someone, after the new law takes effect, solely to determine if they possess the proper license to openly carry a handgun. The legislators could be mistaken, but that was the reason the Dutton amendment was stripped in senate committee. They felt that it was redundant. Huffines added the amendment and several democrats voted for the bill because the amendment would protect their particular constituents from harassment. The Texas LE communities managed to make a 23rd hour plea to have the amendment stripped in conference committee, despite house and senate rules to the contrary. It was clearly an overreach by the conference committee and was recognized as such. But both houses accepted the f'd up reconciliation because to do otherwise would have killed the bill. The LE community bullied them into the deal and deserves to be taken to the woodshed over that.
Now, if the Representatives and Senators were wrong about existing law, they were swindled, because there was no equivocation about the legislative intent that an officer shall not require evidence of a license to carry solely because someone is wearing a handgun in a belt or shoulder holster.
Internet lawyer wannabes can argue all day, but we will have to wait and see what really happens when it happens.
On a brighter note, I was called a fool today for being ready to open carry.
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Let's go back to Texas for a minute.
During the house debate on open carry and the ensuing amendments, and in committee, and again in the Senate, the lawmakers clearly stated that it is already unlawful for an officer to detain someone, after the new law takes effect, solely to determine if they possess the proper license to openly carry a handgun. The legislators could be mistaken, but that was the reason the Dutton amendment was stripped in senate committee. They felt that it was redundant. Huffines added the amendment and several democrats voted for the bill because the amendment would protect their particular constituents from harassment. The Texas LE communities managed to make a 23rd hour plea to have the amendment stripped in conference committee, despite house and senate rules to the contrary. It was clearly an overreach by the conference committee and was recognized as such. But both houses accepted the f'd up reconciliation because to do otherwise would have killed the bill. The LE community bullied them into the deal and deserves to be taken to the woodshed over that.
Now, if the Representatives and Senators were wrong about existing law, they were swindled, because there was no equivocation about the legislative intent that an officer shall not require evidence of a license to carry solely because someone is wearing a handgun in a belt or shoulder holster.
Internet lawyer wannabes can argue all day, but we will have to wait and see what really happens when it happens.
On a brighter note, I was called a fool today for being ready to open carry.
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nonameisgood
Regular Member
Here is the the statement of intent for the Senate version;
California Right To Carry
Regular Member
A statement of intent and fifty cents won't even buy you a cup of coffee. The law requires that one have a permit does it not? Is there any language in the bill which states that police officers are not authorized to stop a person to see if they are in violation of the law by not carrying a permit?
Let me ask this. If a person is hunting in Texas in a place where a license to hunt is required to hunt, does Texas law prohibit a game warden from verifying that a hunter is properly licensed? If so then you might have the basis of an argument but if not...
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WalkingWolf
Regular Member
OHHHH GAWD! For the umpteenth time, the second amendment is NOT about hunting!