Yes, you ARE being detained

Updated 2015-11-05: posted a follow-up.

For those of you wishing to open carry a handgun in Texas come January 1, 2016, it’s critical you understand the law.

One issue that came up during the debates during the 2015 Texas Legislative session 84(R) on the open carry bill (HB 910) was issues of “stop and identify”, if a police officer could stop you to determine if you had a carry license or not. The drama of the debate no longer matters: what matters now is what the law currently says.

What does the law say? The law is silent on the matter.

That said, the bottom line is that yes, if a police officer sees you openly carrying a handgun, they can certainly stop and detain you for the purposes of determining if you are properly licensed.

How is this possible?

Prior to 84(R) HB 910, Texas Penal Code §46.02 Unlawful Carrying Weapons said:

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(a-3) For purposes of this section, "watercraft" means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

Under existing (pre-January 1, 2016) law, a police officer has the authority to stop someone they see openly carrying a handgun. Why? Because according to the above law, it’s against the law to do so. Simple enough.

With 84(R) HB 910, §46.02 changes:

(1) the handgun is in plain view, unless the person is
licensed to carry a handgun under Subchapter H, Chapter 411,
Government Code, and the handgun is carried in a shoulder or belt
holster; or

So what it means is this:

If a police officer sees someone openly carrying a handgun, the police officer has reasonable suspicion that a crime has been committed – namely, the possession of a handgun in plain view, in violation of Penal Code §46.02. Note the language in HB 910 adds to §46.02 the phrase “unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster”.

So yes, you can be stopped. Yes you can be detained. Yes the police officer can and will work to determine if you are able to legally carry (do you satisfy the “unless” clause). Yes, you might be disarmed by the officer.

And yes, per GC §411.205, if a license holder is carrying a handgun on or about the license holder’s person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license or identification certificate issued by the department and the license holder’s handgun license. That doesn’t change with 84(R) HB 910.

So before you get your “rights” all up in a bunch, realize that this is how the law is.

And in speaking with lawyer and LEO friends of mine, there are many other legal cans of worms that are being opened due to the general notion of open carry AND specifically due to the way the current law is phrased. The more I hear and think about these things, the less I feel like open carrying and becoming the precedent-setter. A lot is going to have to be sorted out by the legislators and the courts in the coming years.

If you don’t want to be stopped, if you don’t want to get stuck in the legal mud, then don’t open carry. It’s simple. If you don’t like that this is how things are, then work with your legislators (and probably the TSRA) to get things improved.

If you do chose to carry, if you do get stopped, then realize it will be your opportunity to set the pace and tone for not just yourself, but every other gun owner. As I said before: be polite, be professional. In terms of your own interaction, you’re going to get further by being professional, polite, understanding, sympathetic, and polite (yes, polite said now three times for emphasis) – even if the cop is being a power-tripping asshole, that doesn’t mean you have to be. Be nice. Demonstrate good manners (say “please” and “thank you”, “sir” or “ma’am” doesn’t hurt either). If you’re nice, your interaction should go smoothly – if it doesn’t, then you being nice gives you the upper hand and will just magnify the other’s less than exemplary behavior. We’re all going to be scrutinized here, so live up to some high(er) standards. And hopefully if all early-day interactions go smooth and well, hopefully that will mean less interactions for us all as time goes on.

It’s your choice – you can be an asshole, or you can be an ambassador. Don’t ruin it for the rest of us. Don’t ruin it for yourself. Some people want to open carry to show off their gun. Well, remember that it’s not just your gun that’s openly carried, but also how you carry yourself that’s open for display to the whole world. Make us and make yourself proud.

13 thoughts on “Yes, you ARE being detained

  1. I totally agree with the sentiment of being an ambassador, but I’d like to voice my disagreement with the legal analysis that absent the proposed change in wording regarding detention in the new law, that open carrying meets the reasonable suspicion required to be detained. When the police detain someone, they must have reasonable suspicion that this person violated a specific crime. HB910 changes the elements of the offense of carrying a handgun in plain view. The officer must parse the entirety of the law in order to articulate the elements of the offense. The elements have been changed to specify that the offense only occurs when the person 1) carrying a handgun in plain view AND is 2A) not licensed, OR 2B) not carrying in a belt or shoulder holster. Although legislative construction of the law is frequently unclear and difficult to parse, the officer cannot rely on the title of the law, or just the first paragraph. He MUST know all of the exceptions and all elements of the offense for the detention or arrest to be legal. An arrest or detention that ignores a statutory exception is unreasonable. Imagine being detained for open carrying on your front lawn or 100 acre ranch, and the officer ignores the exception that allows you to do so on your own property. Exceptions are the strongest of statutory constructs, they describe where the reach of the law does not spread. (as opposed to defenses to prosecution)

    The police have no way of inferring if the open carrier is not licensed, just as the police have no way of inferring if a driver is licensed. Detention is not a lawful or recognized way of discovering an element of an offense absent another underlying offense (such as speeding, no license plate light). The police cannot detain you under reasonable suspicion that you violated the law by open carrying, AND not being licensed, for the purpose of establishing that you are in fact not licensed and therefore violating the law. One could quickly see how this would lead to absurd conclusions.

    Although I believe such misapplication of Terry stops occur frequently across the country since the nuances of 4th amendment law escapes even most judges let alone the police, I think the more accurate message to the open carrier is that no, it’s not a lawful detention, (absent some other actual reasonable suspicion which you may not be aware of) but you will likely have to suffer through it until the system adjusts, and please handle it like a gentleman.

    https://zacharycloud.wordpress.com/2012/08/05/does-openly-carrying-a-gun-create-reasonable-suspicion-of-a-crime/

    http://www.fedagent.com/columns?catid=0&id=784

    http://www.leagle.com/decision/In%20FCO%2020130225066/U.S.%20v.%20BLACK

    http://lastresistance.com/3564/u-s-district-judge-open-carrying-handgun-reasonable-suspicion-crime/

    • The best I can say is, this is how the (soon to be) current law is presently being viewed and interpreted. If you pick up the Nov/Dec 2015 issue of “TSRA Sportsman” magazine, Edwin Walker, an independent attorney for Texas Law Shield, has written an article that pretty much says the same thing I am.

      And yes, there’s much confusion and difference of opinion.

      From the article:

      Reasonable suspicion can basically arise by any observed behavior, including an act that might be perfectly legal, such as the open carrying of a handgun in a belt or shoulder holster when the actor is in possessio nof a CHL or LTC. When a law enforcement officer observes a person carrying a handgun he or she legally has a reasonable suspicion that the person is violating Texas Penal Code §46.02…. The fact that the observed person may ultimate be shielded from criminal liability because of a defense, exception, or non-application in the law does not legally diminish the police officer’s ability to establish reasonable suspicion or probable cause. There is no law, Constitutional or otherwise, that requires police to assume that a person carrying a handgun is exempt from $46.02.

      And the article goes on in greater detail, including that different departments may implement procedure in different ways.

      One key thing? This is how many lawyers and departments are interpreting things. We have yet to hear the official low-down from Texas Department of Public Safety; they may have a different take. And we all want DPS to hurry up and speak up, as time is running out.

      The bottom line is: the law is murky — very murky. For example, the law merely states the visible handgun must be carried in a belt or shoulder holster… but what does that mean? Could I put the gun into a shoulder holster (e.g. a Galco Miami Classic), but then dangle the straps from my fingertips? Is that legal? It’s CARRIED in a shoulder holster….

      And the fact you disagree? That really demonstrates the issue. Everything is murky and uncertain. The law, as written, as is on the books, is unclear. In some regard that’s good, because too specific could be too constraining. But it’s also bad because we’re left with a lot of questions, and do YOU really want to be the one to help suss this out in court? I don’t have the time or money nor gumption to do so.

      Thus my general opinion that, at least for now, keep it under your shirt; be polite, be courteous, be professional. And just hope that we don’t have jackasses trying to push the bounds and wind up just ruining things for everyone.

  2. i don’t understand your argument. you are citing the current law under which open carry is illegal. of course it follows that you are committing a crime and can be arrested.

    but open carry will be legal in january and this verbiage will no longer apply. i see marko has articulated most of what i would say if i actually knew anything about the law.

    but, as always, the leo(s) will sidestep this by claiming that you have to have a license, so they have a right to detain you and ask to see your license to carry. so it’s a wash anyway.

    and again i reiterate that open carry will hasten the day when the gun control crowd finally gets fed up enough to get their act together and enact legislation unfavorable to us who own guns. maybe not here in texas where we are the clear majority, but open carry in the more liberal states.

    /guy

    • The verbage still applies. Consider the case of an unlicensed person openly displaying a handgun — that’s a flat out violation, and nothing has changed to permit such a thing. The wording of the law is VERY specific (in §46.02).

      It’s not a sidestep to claim you have to have a license: the law flat out states that you have to have a license.

      I’m not sure where you’re going on this.

      To your last point tho. Open carry has been around in other states for some time, and what you’re predicting hasn’t happened. BUT… given the shenanigans from the past 1-2 years from groups like Open Carry Texas Tarrant County, that was enough to get a lot of people riled up about open carry. Open carry was something only on the radar of pro-gun people, and those groups and others acting like them brought a lot of unneeded and hurtful attention to the notion. I fear they did FAR more harm than good, and may well have set a stage for what you’re predicting.

      Thus my counter — be polite, be professional, be courteous, and hold yourself (and others) to a high(er) standard. Be an ambassador, not a douchebag.

  3. Hsoi,

    You state that openly displaying a handgun is a flat out violation of the law. That’s incorrect. That would only be true if there were no circumstances where such behavior was legal (exceptions).

    I’d like to make a comparison. In Texas, open carrying a rifle is legal, unless you are a felon. There is no prima facie reasonable suspicion that allows the police to detain you to verify that you are NOT a felon. Sure there is some difference between open carrying a rifle and actual licensed behavior such as open carrying a handgun, but then I would point you to the driving example. Driving is illegal, unless you have a license. Under 4th amendment jurisprudence, the police cannot pull you over merely to verify that you have the requisite license. The legal concepts that underpin that reality are complex but well documented in Supreme Court cases. It has to do with the citizens being left unmolested by the government unless proper cause exists. Detention to prove licensure is not seen as sufficient cause for detention as it is burdensome to the freedoms of our society.

    I’d also point out that GC §411.205 is somewhat irrelevant. The law states that …”when a magistrate or a peace officer demands that the license holder display identification…” The use of the word “demands” has meaning, and one must view GC §411.205 under superceding Supreme Court precedent. An officer is only demanding identification when it serves a lawful process as opposed to purpose.. He cannot demand it merely to justify his mere suspicion or interest. Sure he can ask sternly, but that does not make it a lawful command, nor a demand under the law. While an officer asking “do you belong here?” or “do you have a HL?” may serve a lawful purpose, there is no lawful process such as an arrest, citation, or other state power you must submit to. I could be missing something important here, perhaps Hiibel v Nevada allows GC 411.205 to have some teeth, but then I would fall back on the meaning of the word “demands” as strictly limiting under what circumstances an officer or magistrate’s request is an actual demand under the law. If one reads Hiibel v Nevada as allowing states to mandate the showing of identification to police for mere interrogatory purposes, the phrasing of GC §411.205 is limited to only allowing that power when meeting the requirements of a demand. I admit that I’ve not read any legal definition that differentiates the word “demands” vs “requests” in the state of Texas, but I can use my imagination as to how a good jurist might interpret it.

    • Fair and reasonable points. Thank you for sharing them.

      At this point, I’d want to defer back to the lawyers on this, because now we’re really getting into the weeds. I’ll bounce this off a few folks.

  4. Disagree with the writer.

    Is it illegal to drive a car without a license? YES

    Is it legal for cops to stop people to check to see if they have a driver license ? NO

    Unless someone is committing a crime or reported to have, what are you detaining them for?

    • Joe: can you cite your reference for your second statement? That a cop cannot stop people to check if they have a drivers license?

      Per “Meatloaf”‘s comments: Texas Transportation Code, §521.025 (2)(b):

      A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver’s license as required by this section.

      That seems pretty clear cut to me that it’s perfectly legal — in the State of Texas — for a peace officer to stop and detain a person operating a motor vehicle SOLELY to determine if they have a drivers license.

  5. Marko,

    Swing and a miss buddy. Here in Texas, it is spelled out in the Transportation Code that a peace officer may stop and detain a person solely to determine if the person has a driver’s license.

    Here is the full text:

    Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY. (a) A person required to hold a license under Section 521.021 (Sec. 521.021. LICENSE REQUIRED. A person, other than a person expressly exempted under this chapter, may not operate a motor vehicle on a highway in this state unless the person holds a driver’s license issued under this chapter.) shall:
    (1) have in the person’s possession while operating a motor vehicle the class of driver’s license appropriate for the type of vehicle operated; and
    (2) display the license on the demand of a magistrate, court officer, or peace officer.
    (b) A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver’s license as required by this section.
    (c) A person who violates this section commits an offense. An offense under this subsection is a misdemeanor punishable by a fine not to exceed $200, except that:
    (1) for a second conviction within one year after the date of the first conviction, the offense is a misdemeanor punishable by a fine of not less than $25 or more than $200;
    (2) for a third or subsequent conviction within one year after the date of the second conviction the offense is a misdemeanor punishable by:
    (A) a fine of not less than $25 or more than $500;
    (B) confinement in the county jail for not less than 72 hours or more than six months; or
    (C) both the fine and confinement; and
    (3) if it is shown on the trial of the offense that at the time of the offense the person was operating the motor vehicle in violation of Section 601.191 and caused or was at fault in a motor vehicle accident that resulted in serious bodily injury to or the death of another person, an offense under this section is a Class A misdemeanor.
    (d) It is a defense to prosecution under this section if the person charged produces in court a driver’s license:
    (1) issued to that person;
    (2) appropriate for the type of vehicle operated; and
    (3) valid at the time of the arrest for the offense.
    (e) The judge of each court shall report promptly to the department each conviction obtained in the court under this section.
    (f) The court may assess a defendant an administrative fee not to exceed $10 if a charge under this section is dismissed because of the defense listed under Subsection (d).

    Here is the link to the code: http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.521.htm#521.025

    I’d like to point out (a)(2): ‘display the license on the demand of a magistrate, court officer, or peace officer.’ I take ‘demand’ there to mean if I am stopped by a peace officer and they demand to see my driver’s license, I have to display it or I face the consequences.

    Now, as far as the new 46.02 Unlawful Carrying of a Weapon law. The new law on 01/01/16 states it’s illegal for a person to carry a handgun in plain view UNLESS that person holds a valid CHL/LTC and it’s carried in a belt or shoulder holster. I take that to mean, like Hsoi, if someone is seen open carrying a handgun, then a peace officer would have reasonable suspicion (based on “specific and articulable facts”) to briefly detain that person to make sure they are not violating the law by having a valid CHL/LTC. I believe a peace officer could reasonably articulate that they do not know if someone is in violation of 46.02 UNLESS they are able to make a determination as to whether or not that person has a valid CHL/LTC, because it is unreasonable to assume that every peace officer readily knows every CHL/LTC holder’s information off of the top of their head. No one could look at a stranger open carrying a handgun in Walmart and say whether or not that person is legally open carrying that handgun.

    I think like Hsoi said, it’s going to be up to the courts or the next legislative session to sort everything out.

    • Well, best I can say is:

      Except 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.

      “except when there is at least articulable and reasonable suspicion”.

      So if we apply the Prouse standard to open carry, it hits that exception.

      Bottom line: this all demonstrates what a mess the open carry law is. The way to fix it is to work with your state legislator. I trust you’ve contacted them?

      In the meantime, it’s being made pretty clear how PD’s, DA’s, and lawyers are going to proceed. It’s going to be a big mess to sort it out, and I’m more interested in treading carefully to ensure we move things forward in a positive manner, and don’t give the antis more fuel for their fire.

  6. Hsoi, I’m confused by your last statement “So if we apply the Prouse standard to open carry, it hits that exception.” What exception are you talking about?

    My point was that if we use the Prouse standard (the current law of the land), merely open carrying in public, with a proper holster, and absent any other legally sufficient circumstance or information that arouses reasonable suspicion that the carrier is unlicensed, there is no lawful justification for an officer to detain you and demand to see your HL.

    The “can’t detain to check ID” amendment that failed would have been legally unnecessary. I think the message of be polite, be a gentleman, be an ambassador for open carriers is an important one, but it should not be joined with wrong information. If I were writing an article or post on the topic, I would say that the law does not allow the police to detain you to merely check your HL, but be prepared for it to occur anyway, and comport yourself accordingly.

    • This is what Texas police departments, DA’s, lawyers, etc. are saying. This is how they are viewing, understanding, and interpreting this particular law, and thus will be enforcing it. That’s the focus of the information I’m passing along.

      This is not my interpretation of the law — it’s theirs. I’m just passing along the information — about how the law is being interpreted, and will be enforced. And who knows… we’ve still got about 2 months before the law kicks in, so this all may change.

      If it is unconstitutional (and I see the point you’re making, and I see the point the lawyers are making), then that’s going to have to come out in the court battles. Again, we all seem to agree the way the law is worded and implemented is confusing and problematic, and if it does not pass Constitutional muster, that’s going to take time to suss out. And unless you feel like being the one to carry the flag, be aware of how this law can affect your life. If you do choose to carry the flag, then I just ask those making that choice to carry on in a way that will have greater wins and not cause greater harm to the cause.

Join the discussion!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s