TexasCHLforum.com

Jumping Frog wrote:

cyphertext wrote:It appears that many lawyers do not currently agree with you on this. Their take is that the way the law is written that it is typically illegal to carry a handgun in Texas, and that the permit is a defense to prosecution, so the officer can stop you and give you a lawful order to produce identification.

While I agree that there are conflicting court opinions in various jurisdictions, if there is controversy I hope this will eventually get settled in the Legislature instead of federal court.

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.

PC §46.15. NON-APPLICABILITY.
...
(b) Section 46.02 does not apply to a person who:
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun;

Now, I understand that these conflicting legal opinions have created a different legal landscape from jurisdiction to jurisdiction. Still, here was an interesting Law Enforcement Bulletin issued by the Ohio Attorney General two weeks ago. His comments regarding the 4th Amendment and Terry Stop justifications are federal and thus are of interest in Texas as well:

Law Enforcement Bulletin

Search and Seizure (Open Carry): Northrup v. City of Toledo Police Department
6/19/2015
Question: If someone is openly carrying a firearm, can an officer conduct a Terry stop and frisk and disarm the person?

Quick Answer: No, open carry is legal in Ohio and simply carrying a weapon openly is not sufficient reasonable suspicion to justify a Terry stop and frisk.

City of Toledo Police Department, 6th Circuit Court of Appeals, Northern District of Ohio (May 13, 2015)

Facts: An officer was advised by dispatch that a man was walking his dog while openly carrying a gun on his hip. The officer responded to the call and saw the subject, Shawn Northrup, and his wife walking their dog down the street. The officer approached Northrup and disarmed him. He demanded his driver’s license and concealed carry permit. Northrup gave the officer his license but told the officer to look up his concealed carry permit himself. The officer then threatened to charge Northrup with inducing panic, put Northrup in handcuffs, and placed him in his squad car. He eventually released Northrup with a citation for “failure to disclose personal information.” The charge was later dropped by police. Northrup sued the officer and the Toledo Police Department for violating his Fourth Amendment rights.

Importance: Clearly established law prevents officers from stopping and frisking individuals unless they have “reasonable suspicion” that the individual committed, or is about to commit, a crime. While Northrup was clearly “armed,” he was legally armed and there is no evidence that he was armed and dangerous. Because Northrup’s Fourth Amendment right to be free from unreasonable searches and seizures was violated, the Court allowed Northrup’s lawsuit to proceed.

Keep in Mind: Officers can always approach someone who is openly carrying and ask them questions when it is a consensual encounter. What an officer cannot do under the Fourth Amendment is require them to answer. Failure to disclose is not a proper charge because a citizen who is openly carrying a gun, and otherwise not committing a crime, is under no obligation to produce identification. Inducing panic doesn’t fit because it requires the commission of an “offense,” and carrying a handgun in the open is not an offense.

Note the phrase "clearly established law" in the "Importance" comment. That is a key phrase. If one is to sue a law enforcement officer and the department for a federal civil rights violation per 42 U.S. Code § 1983 - Civil action for deprivation of rights, the standard requires the officer violated a person's rights under clearly established law. This lawsuit was allowed to proceed because it met that standard.

Now, I agree with you there is a distinction between states with unlicensed open carry versus states with licensed open carry. However, I've also seen legal arguments that point out it is illegal to drive without a driver license yet stopping someone to demand their driver license does not meet that standard of reasonable articulable suspicion absent other evidence of criminal behavior.

Jumping Frog wrote:

" I can see that is perfectly reasonable for a LEO to see a man with a gun as worthy of investigation especially in this day and age. "

I don't agree with that at all.

You don't see police routinely pulling people out of cars to prove they have a driver license. Absent other evidence of criminal behavior, I do not regard simple law-abiding carry of an openly holstered handgun to meet constitutional standards of reasonable articulable suspicion.