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Charles L. Cotton wrote:

jorge wrote:

Charles L. Cotton wrote:I should just stop responding, but I can't.

Can you document even one arrest or prosecution for unintentional failure to conceal?

Chas.

Does that bicyclist in Fort Worth count?

I wouldn't think so. He was searched incident to arrest after fleeing from the officers.

Chas.

So, in other words Charles, he was charged with failure to conceal in a case currently posted with significant discussion on your own forum where you are claiming there are no such cases. Why don't you just admit again that since these cases aren't reported unless they're appealed, neither you nor I can say with any confidence whether there are or are not any such cases? You've made you're point that it's a low priority issue and the probability of an actual arrest is a weak argument for open carry. I don't disagree with that.

Still, that you are unaware of harassment, arrests, charges or convictions under this law doesn't mean it has not or will not happen. Whether this law is forever completely ignored by the police, it's wrong that the law exists on the books, and for that reason alone, I support lobbying the legislature to repeal it.

I'll give you the last word.

Charles L. Cotton wrote: I've been asking you to identify one for all of us and you haven't done so because you can't. Your claim is bogus and I sincerely hope you keep saying it. You are destroying the credibility of your open-carry position. Constantly crying wolf like Sarah Brady does will do more to scuttle your open-carry campaign than will any outside opposition.

Chas.

You've been asking and I've been rebutting your claim that I need to provide you with such evidence. That's OK. You keep on repeating that ad nauseum.

Purplehood wrote: There is a risk of my pistol growing daisies out of the chamber and levitating, but I am not highly concerned about it.

Many people feel the risk of carrying a concealed handgun, regardless of any laws, has about as low a risk as that. Should we then just drop all this?

SA-TX wrote:The philosophical one is that the 2nd Amendment to the U.S. Constitution protects the right to "keep and bear arms".

Let's not forget that our right to keep and bear arms is protected by our state constitution. Our constitution was amended in 1876 to repeal the power given to the legislature in 1868 to prohibit bearing of arms in public. They were restricted to regulating the wearing of arms not the prohibition of bearing whole classes of the most popular weapons for self defense.

Keith B wrote: So, bottom line, while I will submit it is possible for false arrest to happen for ANYTHING, the mere fact that open carry will help is, IMO, a complete fallacy.

That's true. Changing this one law won't eliminate the risk of being harassed and falsely arrested for possessing a handgun in public. It will make it less likely to be falsely arrested and charged under this particular law. It's one more infringement off the books. That's all the reason I need.

Keith B wrote: So if you claim that little green men are going to come down from Mars and take everyone back to their planet for scientific experiments I am supposed to believe you because you say it could happen? Not buying it. Paranoia is something that needs to not be heeded.

I suppose if one fallacy doesn't succeed, try try again. Poisoning the well and strawman doesn't really help your case any more than non-sequitor. Here's a statement I received in email from Opencarry.org recently.

"Open carry also helps to protect CHL holders from wrongful arrest if their firearm becomes exposed."

This is a bit closer to my point of view than your little green martian strawman. Note that it doesn't claim anywhere that there's a mass of wrongful arrests and convictions. It doesn't claim that there have been any arrests or convictions. It points out that there is a risk of wrongful arrest. It doesn't claim that there's a great risk of arrest, just that there is a risk. It also doesn't claim to eliminate that same risk under other gun control laws. I don't need to prove that there has been a single arrest against this particular law to demonstrate that there is a risk. I don't need to demonstrate a single case of false arrest against the homicide laws to demonstrate that there is a risk of false arrest with that law. The difference is that the homicide laws are necessary and our jeopardy to false arrest under that law is a necessary evil if we want to outlaw homicide. The gun control laws are not necessary, and our jeopardy to false arrest is unjustified regardless of probability. On that basis, I support any effort to lobby the legislature to repeal this law.

We have real accounts of people accidentally exposing their weapons in front of police officers and NOT being harassed or arrested. Those accounts are here in the forum. I am from the Show-Me state; until you can show me ones that HAVE been harassed or arrested, I don't believe it is gonna happen.

This on the other hand is a hard claim you and Charles are making. You're claiming that:

1 because of your interpretation of the law
2 because of you being unaware of any false arrests, harassment, or convictions
3 because of a hasty generalization about some LEOs reaction

We have nothing to worry about. There is no risk.

That's a non-sequitor. The conclusion doesn't follow from the premises.

Charles L. Cotton wrote:It has nothing to do with "unintentional failure to conceal." It's a story, if true, of a LEO and a prosecutor who didn't know the statutory definition of "premises" as it applies to school grounds. This is no more relevant to "unintentional failure to conceal" than a warrant raid against the wrong house, an unfounded arrest for drug possession, or any other mistake a LEO can make.

Both of those stories demonstrate that LEO's and DAs are just as likely to not know or care about the statutory definition of "intentional" any more than they know or care about the definition of "premises." These stories demonstrate the fact that some LEOs and DAs are inclined to arrest and charge any man with a gun. This law just gives them one more excuse to do so. No, deleting this one law won't stop them, but it's one step in the right direction.

With 55,000 "signatures" on the OpenCarry.org petition, radio ads, billboards, TV, radio and newspaper interviews and thousands of posts on Internet forums, not one person claiming to have been wrongfully arrested has come forward or identified. This speaks volumes, whether you are willing to acknowledge it or not.

Not one person has come forward and made you aware? Therefore, it hasn't happened? Therefore it can't happen? Therefore we have nothing to worry about? It doesn't follow. It's a non-sequitur. I don't have to prove the negative to demonstrate that.

KC5AV wrote: Not really. If the gun is openly carried, it's still just as easy for someone to say you threatened them with your gun, or for someone to call in "Man with a gun".

It's one less excuse even if they have three more ready to go. We need to get rid of all of them, and one thing I forgot to mention. We need to make it crystal clear to our judges that they need to overturn the state decisions that let all these laws stand and enable the legislature to continue on at it's whim to ignore our constitution. Regulation on wearing with a view to prevent crime does not and has never meant prohibition. We need court cases that make it crystal clear to the legislature, executive, and all anti-gun do-gooders in the state that these infringements will be a very costly affair. Until then we all have plenty to worry about.

Here's another one I read today.

Individual brings weapons on campus in violation of state law
http://media.www.westernoregonjournal.c ... 6492.shtml

"There is one small problem. The student has a valid Oregon concealed handgun license. He is statutorily exempt from the prohibitions on gun possession in public buildings."

http://www.oregonconcealedcarry.com/ind ... topic=4606

So, if and when you guys are successful at getting concealed carry on campus passed, looks like we still have a few things to worry about. Looks like until we make it crystal clear to our government that possession of a firearm in public is our fundamental right, we have plenty to worry about. While we allow all of these unconstitutional infringements to remain on the the books, we allow our state constitution to stand with that 1876 caveat, and we allow our rights to continue to be infringed under the US 2nd and 14th amendments, we haven't made it crystal clear.

Keith B wrote: So to your point, how would open carry help that? As I stated before, they can still arrest you for 'displaying a weapon in a threatening manner' or 'brandishing' if someone wants to complain that you were threatening them.

It's just one less excuse they have to haul you off to jail just because you possess a gun. It's just one more unconstitutional infringement of our rights that we need to get rid of. Is it the most important one? Is it one that should be addressed in this legislative session? You guys have made some good points there. Should we worry about it at all because Charles assures us there's only two convictions and he assures us he knows how "intentional" is interpreted by the legislature, police, DAs, and the courts? That's still a non-sequitur.

If the gun is concealed, then no one knows it is there and they won't be able to tell them you have a gun (unless you expose it to them.)

That's right, and this guy sure shouldn't have exposed, ie confessed, it to this cop. The law doesn't say a CHL has to reveal he's actually carrying a handgun. Many people have criticized me for worrying about confessing to firearm possession. Surely I shouldn't have to worry about that if it's not against the law right? This is why I'll identify with the CHL license, but when it comes to the question "are you in possession of a firearm," I'll politely refrain from answering until I have that attorney present, despite all the assurances I've gotten that I have nothing to worry about.

My point is that just because no one has been convicted does not mean we have nothing to worry about. Getting arrested, having to make bail, and having to hire an attorney is plenty enough of a loss of freedom to be very very worried about, even if there is no conviction. Granted we are always subject to false arrest. Therefore, we have to be vigilant to restrain the government. I support any effort to repeal any or all of these unconstitutional infringements of our rights. Until they're all repealed, and in fact until we amend our constitution back to what we wrote at our independence and our statehood, we all have something to worry about. The Texas legislature should not ever be allowed to infringe our fundamental right to keep and bear arms.

This was posted by Blinn77 today on Opencarry.org. Not illegal? No convictions? Nothing to worry about? No subjectivity in the word intentional? Let me know Charles when you can assure us that no one has or ever will be harassed, arrested, charged, or convicted for "unintentional" failure to conceal. I also noticed earlier that you said convictions aren't necessarily recorded unless they're appealed. Let me know when you can actually back up your claim that there have only been two convictions. Until then, I will support anyone lobbying our legislature to eliminate these infringements on our rights.


"Posted: Fri Feb 13th, 2009 03:01 am

I know this is not a "open carry" story, but it does involve carrying a handgun in Texas with a CHL (concealed handgun license).

As I am sure many of you fellow Texans probably have CHL's, I thought you might find this interesting.

I was arrested for "carrying a prohibited weapon, in a prohibited place" which is a 3rd degree felony in Texas.

I was riding in a crew cab truck with some friends, and they pulled over into a large parking lot off the road to try to find a lighter he had dropped on the floor board of his truck. Well once he stopped we all got out to try to find his lighter since two of the passengers were smokers (cigs not the other stuff) and were having nicotine fits.

While standing here in this dark parking lot around this truck, a Pct. 4 Harris County Constable drove by and took notice of us. He decided to pull into the parking lot and see what we were up to.

He asked what we were doing and we explained and he asked to see ID's from all of us. Well since I was carrying my Glock 23 on me, I gave him my D.L. and my C.H.L. as required by law.

He went to his car to run our ID's and I am sure check for warrants. Well after about 8 to 10 minutes, 2 other police vehicles showed up. He returned to me and asked me to turn around a place my hands on the truck. He then removed my handgun off me, and told me "do you realize this is a school parking lot?". In which I replied "no I did not, but I do not see how that is relevant". He then replied "your carrying a handgun on school grounds". I replied "I understand that, but school premises does not apply to a parking lot for a conceal handgun license holder".

He then laughed at me and told me "I think I know the law better then you". In which I said "well in all respect sir, I am T.C.L.E.O.S.E. (Texas Commission on Law Enforcement Officer Standards and Education) certified just like you, as I graduated from H.C.C. Police Academy and past my TCLEOSE test. I am also a Criminal Justice major and I am very much aware of my rights and what the law says. Maybe you are mistaken, and we can look it up in your Texas Penal Code book."

He laughed at me again, and hand cuffed me, then placed me in the back of his cruiser. I was taken to Cypresswood Pct. 4 holding cell, and then later transferred by bus to downtown Harris County Jail. I had to post a $5,000 bail and then immediately headed for home where I grabbed my Texas Penal Code book from when I was in the police academy.

After a little research I found Texas Penal Code 46.035, "carrying a prohibited weapon in a prohibited place by a CHL holder". See they were trying to charge me with a separate crime, that did not and COULD NOT be charged to me, because I am in fact a "CHL holder".

Now low and behold at the end of the statue it says in big print and I quote:

3) "Premises" means a building or a portion of a
building. The term does not include any public or private driveway,
street, sidewalk or walkway, parking lot, parking garage, or other
parking area.

So armed with this new found knowledge I went into court my first day (with no attorney) and asked to speak to the district attorney who was in charge of prosecuting me in my case. I tried to show her my penal code book and ask her about the statue, in which she replied very much like the officer with "I went to law school. I am quite aware of what the law says", and blew me off.

When the session started she even told the judge "the prosecution is ready to proceed" which in my book means she had read over the case, and felt she had a firm case here.

Well the judge asked me where my attorney was, and when I told him I did not have one, he quickly advised me to be quite and said we would reset the court date until I could find counsel. I tried to explain to him I did not need a attorney and he again warned me of how serious of a matter this is. I ended up having to say "well I know I have a right to represent myself, so if that is what needs to be done for me to be able to speak, then I will take that right". At that point I am assuming he took me more serious and asked me what it was I wanted to show him.

He looked at my penal code book and read the high lighted section I quoted above. Then closed the book and looked at the front cover. It was a 2 yr old edition, so he asked the district attorney to see her copy of the penal code (a newer copy). He checked in her copy to make sure the law had not been revised in the last two years, then asked the D.A., "can you explain this" in which time she was happy to look at the statue for him.

Well after reading it, she kind of stood there dumb founded and quite. The judge called a five minute recess and told the D.A. he wanted to speak to her in his chambers. Five minutes later they returned and he said "having looked at this new found situation, the case is dismissed".

Now since this is already running long, I will skip quite a few steps and say it was not over there. My Glock was taken as "evidence" for my case. I was told I couldn't have it back by Pct. 4 Constables (where it was locked up in their evidence room) because the D.A. had to sign off on something, even though I had paperwork showing the case was dismissed.

Later a friend's wife, who works downtown in that same criminal court building spoke with the officer for that court room, who spoke with that D.A., who told him to relay the message back down to me that and I quote "hell will freeze over before he gets that handgun back".

Fast forward a year later, and many, many calls later, and leaving about 50 voice mails on the Corporal who was in charge of the evidence room, he called me back and told me I could have my pistol back if I promised to stop calling him. I went up there, signed some piece of paper saying I got the pistol back, and he brought it out to me. I don't know if he just figured the D.A. would surely have forgot about it since it was a year later, or what, but on that day, hell must have froze over.

Also I thought that was the end of that whole ordeal (this happened in March of 2006), and now that I have finished my degree in Criminal Justice, and am trying to go into law enforcement, I have now found out that most departments won't look at me because I was CHARGED with a felony. Yup, that is correct. I have been told that I will probably have to go spend $1,000 to a attorney to go to court and try to get that event expunged of my record.

So all in all, this "know it all" officer who was obviously not very knowledgeable of the law, cost me thousands of dollars, a couple days in jail, and possibly my future career in law enforcement.""

Charles L. Cotton wrote:More importantly, if open-carry supporters are going to claim that CHLs have been arrested for unintentional failure to conceal but have "beaten the rap," then it is incumbent on those supporters to come forward with specific examples (names, dates, etc.) of such arrests. The truth is they can't.

I agree. That would be a weak argument the way you've put it. However,the argument that we don't have anything to worry about because it's not illegal and you can find only two convictions is a non-sequitur. For example here is a quote from the DPS FAQ on the question:

"Q: What does "concealed" mean?
A: "Concealed" means that the weapon cannot be visible, and that its
presence cannot be discernible through ordinary observation. It is a
criminal offense for a license holder to carry a handgun in plain view,
or to intentionally fail to conceal the weapon."

This is apparently how a large law enforcement agency interprets the law. It's quite a bit different than the way you're insisting the law is written and intended. This says carrying in plain view or intentionally carrying in plain view is a criminal offense. It says to me they don't care about your intentions at all, only that it's easily observable that you're a man with a gun. An expensive attorney might be able to get this interpretation dismissed in court, but I'm not so confident it could keep me out of handcuffs, a ride down to the station, a night in jail, bail, and a great big check to an attorney. I think it's a legitimate concern, regardless of the technicality of the law, and that's why it's resonating so well with so many CHL holders.

Open-carry supporters are largely responsible for some percentage of CHLs worrying about unintentional failure to conceal. OpenCarry.org has a number of posts claiming this is a problem. This issue was very rarely raised prior to the open-carry movement targeting Texas for it's legislation.

They may very well make that argument on their website, but who knows? Maybe it's that DPS FAQ question above that every CHL holder got in their training material? It's not just the open carry supporters or just as a result of them that people are making this point. There is a public stigma that carrying a firearm is a criminal and immoral act. There is a legitimate fear that exposing a concealed handgun in public or private could lead to social and or legal issues. It makes you a man with a gun, and we know how that's dealt with socially and by the police. It is a legitimate concern that our little plastic card isn't enough assurance to protect us against that stigma. Repealing the ban on open carry and the laws on failure to conceal would give us more protection. Would that be enough to eliminate the concern? Probably not. Just ask all the people that have been arrested and harassed for open carrying in states where that is perfectly legal.

Neither person threatened anyone. In the McDermott case, the defendant put his pistol on the dash of his Suburban to scare a woman away from his vehicle. He never said a word to her and he never pointed the gun at her. He was only convicted of intentionally failing to conceal, not assault.

Both cases involve a physical threat. We don't need this law specific to handguns only. If I do the same thing with a shotgun, long rifle, or a knife, it's perfectly legal? What should be illegal here was what these two did to the other people, not that they did it in particular with a handgun. The complaint was that they threatened them with a weapon. This isn't about how they wore the handgun, which is all the legislature can regulate under our state constitution.

The bottom line is that OpenCarry.org and some open-carry supporters have repeatedly claimed that unintentional failure to conceal can "get a CHL in trouble." As long as this claim has been made, I have not seen one single incident documented, not that one or only a few incidents would justify open-carry. The fact is, OpenCarry.org's claim is not true. Why is it acceptable for OpenCarry.org to make false claims about risks, but it is reprehensible when the Brady Campaign does precisely the same thing?

Their claim may very well be untrue, but your non-sequitur argument against it doesn't demonstrate that it's false. That their argument is unsupported by evidence or even that it misconstrues the legal technicality of the law does not make it false. To demonstrate that we have nothing to worry about, you need to provide evidence that no one in fourteen years this law has been in effect has been harassed, arrested, tried, or convicted. You've admitted that you can't even assure us, for a fact, that no one has been convicted for unintentional concealment. It may not be a strong or well supported argument, but it's not a fact that it's false.

Again, people should support open-carry if they feel it is appropriate, but they should leave the boogeyman scare tactics out of the debate.

We're talking about real people that call real cops with real handcuffs, not boogeymen. Anything we can do to better protect our rights should very well be a part of the debate.

Charles L. Cotton wrote:Unintentional failure to conceal is a smoke screen, not a real threat. In the 14 years since CHL passed in 1995, there are only two reported cases dealing with violation of TPC §46.035(a) intentional failure to conceal. Open-carry supporters claim that those of use who worry about a backlash to open-carry are not presenting realistic concerns, yet they repeatedly argue that inadvertent failure to conceal is a problem. They argue this in spite of the express language of the statute and in spite of the fact that only there are only two reported cases in 14 years. (As for the backlash, all we have to do is look at Texas between 1995 and 1997.)

Support open-carry if you will, but don't base it upon unfounded claims that a high wind will land you in jail.

Chas.

I understand your position on open carry. You've made some good points about this bill, how it's being pursued this year, and on open carry in general. However on this point, it's a non-sequitur to conclude that because there have been only two convictions, CHL holders have nothing to worry about with this failure to conceal law. It just doesn't follow. How many people have beaten the rap, but took the ride anyway or dealt with a direct threat of the ride? I've asked you that before, and you had no answer. Obviously, despite the language of the law, many CHL holders are fearful of taking that ride. That there have only been two convictions doesn't make the case that CHL holders have nothing to fear from this failure to conceal law. Although I agree that it's not a strong case for open carry, legalized open carry would give added protection to CHL holders. This one law is a small case out of the bigger case that because of legalized unrestricted open carry, many restrictive regulations on CHL, including this one on failure to conceal, could be repealed more easily as moot issues.

I believe in the two cases you've mentioned, you said they were actually cases of threatening someone with a gun. That's already illegal whether it's a knife, a gun, a crowbar or just a threat of assault. Failure to conceal a gun, in particular, shouldn't be illegal. The legislature can only regulate the wearing of arms with a view to prevent crime. The 1871 gun ban, in my opinion, has always been unconstitutional after 1876. I've read that the 1876 amendment was intended to prevent the legislature from banning public possession of firearms, regulating keep and bear at their whim, and to repeal the 1871 gun ban where they did just that. All of these laws have resulted from our modifying the constitution in 1868 and 1876, and our failure to hold the legislature to even our current constitution. That's all the justification we need to repeal these restrictive infringements on one of our most fundamental rights.

Granted, it may not be realistic for a complete win in today's political environment. However, until we get back to the constitution of 1845, we have every reason to lobby the legislature to repeal these laws, to refrain from regulating our rights unconstitutionally, and even to restore our original state constitutional guarantee.

Texas:
1836: "Every citizen shall have the right to bear arms in defence of himself and the republic. The military shall at all times and in all cases be subordinate to the civil power." Declaration of Rights, cl. 14.
1845: "Every citizen shall have the right to keep and bear arms in lawful defence of himself or the State." Art. I, § 13.
1868: "Every person shall have the right to keep and bear arms in the lawful defence of himself or the State, under such regulations as the legislature may prescribe." Art. I, § 13.
1876: "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime." Art. I, § 23 (enacted 1876).

It's our right to keep and bear arms, no buts about it. Call me naive and idealistic if you like!