One of our local PDs had a community relations event at a local coffee shop last evening. I went, intending to ask questions about OC. To my surprise, three officers were there and one of them was the chief. I talked with him and with one of his sargents and they confirmed what you believe - that it would be unlikely for them to stop someone OC unless there was associated questionable behavior but that they would likely respond to every MWAG dispatch call and that a supervisor would likely go, too, unless workload prevented it. They talked about one of the OCT demonstrations held locally last year and about a local taco shop incident that is worthy of sharing. The sargent said that typically they will get a flurry of calls on a MWAG situation and that they are very suspicious of such a report by only one person.srothstein wrote: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.
Apparently there was some sort of reenactment activity in Ft. Worth and a group of the participants decided to stop at the taco shop afterward. They were carrying black power pistols in very visible leather holsters. Several of the patrons of the taco shop placed frantic MWAG calls with dispatch. The sargent said that he knew immediately from the demeanor of the guys with the visible guns that there was no problem. But he said one of the women, there with her husband and child, was in near hysterics and was crying profusely. When the officers spoke with the owner of the shop, he had no problem with the group being there. The sargent said that he stayed there to try to deal with the woman who would just not accept the fact that there was nothing illegal going on. He also said that he expects similar situations with OC.
I think the woman's conduct speaks volumes about what we might be dealing with from at least some of the public. Personally, if I felt that I was in a threatening situation, I would leave immediately. For someone fearful to the point of near hysterics to remain and fight with the police over their unwillingness to act suggests an "entitlement" mentality. Some recent social media threads that I've seen echo exactly that. It is less about their actual physical fear and more about a demand for LE to do things to make them comfortable, with seething anger if their demands are not met. What I took away from the discussion is that the demeanor of the OC person(s) would play a big part in what happened.
The chief is planning to hold a public forum on OC in the Fall. He says that he is trying to work with other departments to come up with a consistent approach but if there isn't a consensus, he will develop his own presentations for the forum. It could be a very interesting session of some if the MDA group shows up to demand more aggressive policing than he is willing to do.