TexasCHLforum.com

JP171 wrote:one thing I have not seen in this entire thread, and I do admit I didn't read all 12 pages, but the legal definition of possession isn't met by merely holding the weapon during a traffic stop by the LEO

here is the definition I can find in the penal code

"Possession" means actual care, custody,
control, or management.

being that having actual( actual would be construed to be for all instances in the definition) in here does not allow temporary "possession" it seem as though to me that to be in Possession of the weapon the officer must have cause to seize the weapon. To me this seems to negate the argument of the officer disarmed you for your safety and then was thereby in possession of the weapon so therefore ran the NCIC check on it then returned the weapon to the original possessor

so in finding this definition I refute any argument that allows and requires by law or procedure to check the status of every weapon removed from the lawful owner

That's what I argued earlier today - viewtopic.php?f=7&t=60221&start=150#p823702" onclick="window.open(this.href);return false;

Abraham wrote:baldeagle,

I'm on your side with this, but I wonder if you'd get to finish verbalizing your 4th amendment speech before he started to arrest you or shine yer noggin with a baton and haul you in?

Plus, I'm a little confused by " "Sir, you do not have my permission to perform any action related to a lawful seizure of my weapon unless you can show probable cause for its seizure.

Did you mean to post "lawful" and if you did, I guess I simply don't understand why?

Color me slow...

There are only two kinds of seizures that I'm aware of; lawful and unlawful. A lawful seizure occurs when, as a result of observing probable cause of the commission of a crime or the imminent commission of a crime, an officer seizes something related to that probable cause. It's called a Terry stop. An unlawful seizure occurs when an officer has detained an individual for a consensual stop and proceeds to seize an item without an probable cause of a crime having been or about to be committed.

Texas law permits an officer, under certain articulable circumstances, to disarm a CHL holder. However, the act of disarming is not a lawful seizure. If it is action taken in the interest of officer safety. For example, a person may be handcuffed, without probable cause and without ever having been arrested, for officer safety. Once the immediate threat is resolved, the individual has the handcuffs removed, and they are free to leave. Disarming a CHL holder, IMO, is a similar act; necessary for officer safety but not a legal seizure.

The murky area enters in when the officer runs the serial number through the NCICS database. Is that a lawful search? I don't think the courts have ruled on that. I suspect, given the current atmosphere, courts would rule in favor of the police being able to run the check, but I would like to think that they would consider it an illegal search. Yes, officers can run your DL through the system looking for wants and warrants, but the 2nd Amendment places a higher burden on government than a simple privilege like driving. It would be interesting test case, for sure.

gigag04 wrote:

mojo84 wrote:Don't know much about the site but they show some stats.

http://copblock.org/tag/police-misconduct-statistics/

Lots of inflammatory language, but little in the way of research and statistics.

In the Interest of full disclosure, I know where the arrest data for Texas cops is. Just curious where all the comments are coming from about LEO criminals - somebody must be seeing some different hard data.

My numbers show 0.1884% conviction rate (not arrest rate) for 2011 CHL holders.

Total number of suspensions AND revocations for TCLEOSE licensees was 23 last year. Out of +/- 75,000 licensees. Which yields 0.03%. The number of active licenses changes almost daily so that figure is subject to change.

Bear in mind, TCLEOSE licenses are suspended on arrests and not convictions.

Per Charles' statistics

In 2011, there were 518,625 active CHLs, but only 120 total convictions.

CHL 120/518625=0.00023138105568
TCLEOSE 23/75000=0.00030666666667
TCLEOSE/CHL=1.32537499999187

IOW, TCLEOSE license holders are 1.32 times more likely to be arrested than CHL holders are to be convicted. I don't know what the arrest rate for CHL holders is, but it has to be higher than the conviction rate. However, you also have to keep in mind that CHLs can be arrested for a justified shooting for which they are later acquitted. The likelihood of that happening to a TCLEOSE license holder would be infinitesimally lower, I would think, since the use of deadly force is an accepted part of their duties. Normally, a TCLEOSE license holder would be suspended or placed on administrative duty during an investigation, but an arrest would only happen if there were serious discrepancies in the report of the shooting versus the evidence.

All in all, we're still comparing apples to oranges. I just wanted to point out that your numbers were wrong, per Charles' compilation.

I didn't read all eleven pages, so this may have already been covered. But it seems to me that "comes into possession" refers to an officer seizing a weapon. The act of disarming a CHL for their and the officer's safety is not a legal seizure. A legal seizure would require probable cause of a crime having been committed.

I would think, then, that running a NCICS check on that weapon would be an illegal search since the weapon was not lawfully seized. Some officers may be interpreting the policy in a way that doesn't comport with my understanding, but I believe, for them to run a NCICS check, they would need to legally seize the weapon and fill out the appropriate paperwork as required by the policy.

Therefore, my approach would be, if encountering this situation, to tell the officer, "Sir, you do not have my permission to perform any action related to a lawful seizure of my weapon unless you can show probable cause for its seizure. If you are disarming me for our safety only, that does not constitute a legal seizure, and I would hold the department responsible for any actions taken subsequent to my disarming that constitute an illegal search or seizure, to include any NCICS checks on my weapon. For your safety and mine, you need to know that my weapon has a live round in the chamber and no manual safety."

What the officer does after that is entirely up to them, but I would have at least established grounds for a lawsuit by claiming my 4th Amendment right.