I believe that I have posted before, and Charles has agreed, that the problem is in the way the law works, according to the courts. We know what "does not apply" means in plain English, but the courts say the law always applies. There is only one thing in the law which make it not apply. An "exception" makes the act strictly legal, but it must be labelled as an exception. All other cases are either defenses or affirmative defenses.Jumping Frog wrote:However, one small nitpick regarding your phrase, "the permit is a defense to prosecution". That is not how the law is written. Instead, Sec. 46.02 is not applicable. There should never be a prosecution that needs to be defended.
So, "does not apply" truly is just a defense to prosecution. It means that you are committing a crime, but should be found not guilty if you can prove the defense.
I am unaware of any case law which would say whether a defense that is common makes an act legal for the purpose of developing reasonable suspicion that a crime is being committed under the Fourth Amendment. I am also unaware of any case law that would say to ignore the possibility of the defense. The closest I can come is my training that any act which was as likely to be legal as illegal would not constitute probable cause. The amount of suspicion needed for a stop to identify is much lower than probable cause though.
My experience and training leave me with the belief (with no evidence) that most officers will ignore people they just see openly carrying but will stop and talk to people when they get a MWAG call. When they talk to people, their training is going to get them to ask for ID. If any of us fail to provide that ID, the situation will generally go downhill. I am aware of the conflict int he law on identifying. You do not have to produce ID or even identify yourself when you are stopped (not driving) but you are required to produce your DL and CHL if you are carrying and a police officer asks for it.
I think, and this is just my guess right now, that if an officer was sued for stopping a person for openly carrying and stated it was just because they were carrying, the officer is going to win the lawsuit. I think the officer would also win a motion in a criminal trial to admit any evidence resulting from the stop.