I wonder what legal standing questioning a person in a traffic stop has?
Well, if they're examining your car in the school parking lot, it' s a cinch you're not traveling since traveling has been considered to be pretty much a point-to-point thing in past court cases. Stops unrelated to the trip (at a school, for example vs a gas station) don't usually qualify even if you're in the middle of a trip.
"Where are you going?" is a very common question during a traffic stop. I can't remember specifically enough to say that I've been asked this on EVERY stop, but I've definitely answered this question on more than one traffic stop.
You don't have to answer any questions on a traffic stop, but if you choose to do so, you should be aware that what you say can and... (do I really need to finish this statement?) :D
Charles L. Cotton wrote:Flatland2D:
You can leave your gun in your car in a school (including university) parking lot and I don't care what the campus cops think. I would make sure the car was locked. If a campus cop makes an arrest that is so clearly bogus he and his "department" could well be looking at a §1983 law suit. It's one thing to argue over admittedly vague and ambiguous statutes, but this is clear. (As you noted, don’t do it if there is a school sponsored activity going on, such as a car wash in the parking lot.)
Chas.
Awesome, thanks for the advice Mr. Cotton. I won't worry so much about it.
On a somewhat related note, what is the most common method of vehicle storage? Stowed under the seat but not inside a container, stored in a container (or glove box) but not locked, or locked up in a safe bolted to the car? As long as the car is locked, are you legally required to do anything with the gun (like lock it in a safe, or unload it)? Now I'm not saying I'm just going to set my loaded gun under my seat while I'm gone, but I wonder how much effort I should put into finding a secure method of storage for the car. I know a safe is the best method, just wondering if it is acceptable to store any other way.
If you would entertain just one more question, Mr. Cotton. Say for some reason the campus police found my gun in my car. Regardless of the bogus arrest and following lawsuit, would I have any legal grounds to get myself back into the school if I was suspended and this type of thing was in their school codes? Would the school code be found unconstitutional since this is a public university? This is UTSA, if that matters. I'm not worried about getting arrested (being that it would be wrong for them to do so) but I really need to finish my education.
I wonder what legal standing questioning a person in a traffic stop has?
Well, if they're examining your car in the school parking lot, it' s a cinch you're not traveling since traveling has been considered to be pretty much a point-to-point thing in past court cases. Stops unrelated to the trip (at a school, for example vs a gas station) don't usually qualify even if you're in the middle of a trip.
"Where are you going?" is a very common question during a traffic stop. I can't remember specifically enough to say that I've been asked this on EVERY stop, but I've definitely answered this question on more than one traffic stop.
You don't have to answer any questions on a traffic stop, but if you choose to do so, you should be aware that what you say can and... (do I really need to finish this statement?) :D
WIth the new addition to 46.15 and the traveling presumption, your destination no longer matters if you meet the 5 requirements of the presumption.
I know what some DA's have said....
And while I have not been stopped for simple traffic violations, I have while doing Private Investigative work. I have state issued ID and I answer their questions not because I am obligated, but to get them to leave as quickly as possible.
On a traffic stop you have to give the officer your DL and insurance, and answer simple questions about your identity and such. I will not answer questions from an officer about if I know why he stopped me, where I am going, etc. I will be polite and courteous and deflect those questions.
*CHL Instructor*
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
Flatland2D wrote:On a somewhat related note, what is the most common method of vehicle storage?
I honestly don't know what is most common, but I suspect either in a glove compartment or console, locked or unlocked. A number of members have bought a handy lock box and I'm thinking of getting, not because of legal issues, but to protect the gun. So far as Texas' "safe storage" law is concerned, I take the round out of the barrel and remove the mag. That way the gun is not "loaded" plus I obviously lock the car as well.
Flatland2D wrote:Say for some reason the campus police found my gun in my car. Regardless of the bogus arrest and following lawsuit, would I have any legal grounds to get myself back into the school if I was suspended and this type of thing was in their school codes? Would the school code be found unconstitutional since this is a public university? This is UTSA, if that matters. I'm not worried about getting arrested (being that it would be wrong for them to do so) but I really need to finish my education.
I don't know of any cases on point, but there should be cases dealing with expelling students for violations of a school's code. However, a "no guns" policy is factually different from a “no alcohol� policy and similar policies, as it deals with an area of law already heavily regulated by the State Government.
I do not believe a "no guns" in the car argument should prevail for a number of reasons. First, the Texas Legislature has already dealt with the issue of where guns can and cannot be carried on school property. (No guns on the "premises," with "premises" defined to include builds and portions of buildings.) Secondly, the Legislature has expressly precluded state agencies and governmental entities from excluding CHL holders from governmental property, with certain very limited exceptions. (SB 501 and TPC 30.06) Based upon these two areas of regulation exercised by the Texas Legislature, an argument can be made that the Legislature's regulation of this area of the law is complete; i.e. precluding codes and policies to the contrary. An argument could also be made that the university does not have the authority to forbid you from doing that which the Texas Legislature expressly authorized you to do (if you have a CHL).
These are somewhat esoteric legal arguments that can be made, but as I say so often, no attorney gets to make those arguments for you until and unless you get expelled and are suing to get back in. Yes, here come those two nasty words that everyone is sick of hearing - “test case!� I love to make good, intellectual legal arguments and prevail. But my clients don’t enjoy it nearly as much.
As many on this forum have noted, “concealed� means out of sight, so the issue shouldn’t arise. Of course, I’m not giving legal advice on the Internet, or encouraging you to violate any school code or policy.
Thanks for answering my questions. The information you (and everyone else here) gives out is invaluable. I very much appreciate your time to help me out with this.
I haven't decided what to do yet, but I have more confidence that what I will choose will be the best option for me.
There is nothing in the law that prevents an officer from arresting someone if there is something that contradicts the presumption of travelling.
If you're already at your destination and it's two blocks from home, that's not travelling by any definition. If you tell the officer something that makes it clear you're not travelling, same deal.
Going to a school to pick someone up is also not travelling.
The law does NOT change the legality of carry without a CHL. It does NOT define travelling, it does not make anything legal that wasn't already legal. It simply says that the officer is to presume you are travelling if you meet the provisions of the law.
The law doesn't say that an officer must ignore evidence that contradicts that presumption.
JohnKSa wrote: The law doesn't say that an officer must ignore evidence that contradicts that presumption.
The new statutory procedure for applying this new traveling presumption effectively says just that. True, it doesn't preclude an officer making an arrest, but as mentioned in another thread, the U.S. 6th Cir. Court of Appeals has held that an officer can be sued for arresting someone who appeared to have a defense to the charge for which he was arrested. There is no 5th Cir. case on this issue, but I hope there is soon.
Chas.
Here is TPC 2.05(b) [The new statutory presumption procedure]
(b) When this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption [the five elements of traveling], the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole [judge can only consider the same evidence the jury can consider] clearly precludes a finding beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:
(A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption [the five elements of traveling], do not exist;
(B) if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;
(C) even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.
I see nothing in the law nor in the quote you provided that requires an officer to ignore evidence contrary to the presumption.
Here's the critical section from your cite:
"unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact"
If the officer happens upon (or is provided with) evidence that clearly precludes the presumption of travelling then arrest and prosecution are likely to follow. And since that evidence would eliminate the travelling defense, there is no way the officer could be said to be arresting someone who has a defense for their actions.
While this law makes it less likely (maybe even MUCH less likely) that a person will be arrested for a handgun in the vehicle, it does not, by any means, prevent that occurrence. And it does not prevent or penalize an officer from acting on any evidence which he feels clearly contradicts the presumption.
This has been publicly stated by some TX DAs and is the consensus of both NRA and TSRA legal counsel as quoted in the TSRA Sportsman.
With all due respect, I'm gonna go with the lawyers on this one and would advise others to do the same.
JohnKSa wrote:
If you're already at your destination and it's two blocks from home, that's not travelling by any definition. If you tell the officer something that makes it clear you're not travelling, same deal.
WOW, I did not realize how stupid I am. I have read, and re-read the presumption, and I don't see a thing that refers to destination.
There is NO definition of traveling. The law makes a presumption that means if you meet the 5 requirments you ARE traveling. I don't give a tiny rodents posterior about all of the other rhetoric.
*CHL Instructor*
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
JohnKSa wrote:
If you're already at your destination and it's two blocks from home, that's not travelling by any definition. If you tell the officer something that makes it clear you're not travelling, same deal.
Going to a school to pick someone up is also not travelling.
.[/b]
From Merriam-Webster
Traveling:
2 a : to move or undergo transmission from one place to another b : to move in a given direction or path or through a given distance [/b]
JohnKSa wrote: Here's the critical section from your cite:
"unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact"
I've covered this in detail in another post, so I won't do it here. A shorthand version is this: a judge can take the case away from a jury, i.e. refuse to submit the presumption to a jury, only if reasonable minds could not differ in the result. In doing this, the judge can only consider the same evidence that can be presented to a jury. Since the jury can consider only evidence on the five elements of the traveling presumption, this is all the judge can consider. Fresh groceries, trip length, is the car moving, etc. is not evidence the jury can hear, so the judge can’t consider it either.
JohnKSa wrote: This has been publicly stated by some TX DAs and is the consensus of both NRA and TSRA legal counsel as quoted in the TSRA Sportsman.
I'm not sure exactly what you are talking about here. As an attorney and member of the NRA Legal Affairs Committee and as Vice-Chairman of the TSRA Legislative Committee, I can state that neither the NRA nor the TSRA have taken the position that evidence on issues other than the five elements of the traveling presumption can be considered by the judge in deciding whether the presumption goes to the jury. The advice given by TSRA on how to respond to a traffic stop is in response to erroneous interpretation of the new statute by Rosenthal and other DA's. It is an attempt to help members keep from becoming a test case; it is not based upon the belief that Rosenthal's view of HB823 is correct.
Edited to add: If you are referring to whether an arrest can still be made, I agree that a LEO can still make the arrest, as we are dealing with a presumption. This is also NRA's and TSRA's position on an arrest.
JohnKSa wrote: With all due respect, I'm gonna go with the lawyers on this one and would advise others to do the same.
No offense taken and I mean none either.
Regards,
Chas.
Last edited by Charles L. Cotton on Wed Apr 19, 2006 9:51 am, edited 2 times in total.
JohnKSa wrote:While this law makes it less likely (maybe even MUCH less likely) that a person will be arrested for a handgun in the vehicle, it does not, by any means, prevent that occurrence. And it does not prevent or penalize an officer from acting on any evidence which he feels clearly contradicts the presumption.
This has been publicly stated by some TX DAs and is the consensus of both NRA and TSRA legal counsel as quoted in the TSRA Sportsman.
Can you point me to the issue or date of the article in the TSRA Sportsman? I recall reading it (I think), but can’t recall what was stated in the article. While it is probably in one of the issues recently liberated from my desk to the trash by my better half, I would like to review the article.
What about having a rifle in the trunk in the school parking lot? Is there anything (other than possibly school code) that could prevent rifle car carry? Just doing some quick research I've only been able to find penal institutions are ruled out (source: NRA-ILA, "It is unlawful to possess a firearm in a penal institution."). Anywhere else? A rifle in the trunk would make nice back-up if things really got sticky and you had the ability to get to it.
Flatland2D wrote:What about having a rifle in the trunk in the school parking lot? Is there anything (other than possibly school code) that could prevent rifle car carry?
That's fine too. (Our prior discussion about the school policy would apply to a long gun as well as a handgun.)
The March April 2006 Sportsman has an article on page 9 entitled:
"Message from the TSRA General Counsel, Important Notice to All TSRA Members WITHOUT a Valid CHL".
The quote I made earlier in the thread with a transcription of a policy statement from the Tarrant County DA was from that article.
Mr. Ross (TSRA General Counsel) clearly indicates that the citizen may inadvertently provide the officer with evidence (specifically in response to the "Where are you going today?" question) contradicting the presumption of travelling and resulting in arrest and prosecution. Therefore he advises that one not answer such questions and that one not consent to a search without a warrant. His final comment is:
"You may receive some kind of traffic citation, but that is better than being placed under arrest, having your handgun confiscated, your car towed and having to make bond and court appearances after being charged under P.C. 46.02 for being in possession of an unlawful concealed weapon."
The earlier analysis from NRA -ILA was in an article in the issue that came out immediately after the law passed, IIRC.
I can't find the article, but I did find a quote from the article that I posted some time ago on another forum.
"HB 823 Bill Analysis Provided by the staff at NRA-ILA
Texas H.B. 823 prevents the police from routinely arresting a law-abiding person who is transporting a concealed pistol in his motor vehicle. This is accomplished by clothing a law-abiding person with the presumption of being a traveler. The traveler presumption may be rebutted by the state by presenting proof beyond a reasonable doubt. In plain terms, a law-abiding person should have no problem transporting his pistol in a motor vehicle provided the pistol is concealed. "
My emphasis added. In plain terms, their final one sentence summary indicates no particular benefit over the situation extant before the law was passed. If you keep your pistol concealed, a law-abiding person would have no problem either before or after the passage of HB823. That amounts to damning the bill with faint praise in my opinion.
Here is a quote from the Hon. Terry Keel, one of the legislators who authored and passed the law.
"The legislature has likewise never defined “traveling� because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.
...
In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances."
Given that traveling has NOT been defined or redefined, it seems clear that there is no change in the legality of carrying a handgun in the car without a CHL. Therefore, if it was illegal for you to carry a handgun in your car when driving a block to the grocery store before the law passed, it is still illegal.
Mr. Keel's comments make it clear that this law changes nothing in terms of what is legal or illegal. It only transfers the burden of proof from the citizen to the state. NOTHING more. The ONLY difference now is that if you are caught with a handgun in the car, the officer will PRESUME you are travelling UNLESS you (or the circumstances of the situation) make it abundantly clear that you are not.
Here is the entire text of Terry Keel's comments.
"TO:Media
FROM:Terry Keel, State Representative, Austin
RE:HB 823 by Keel, Effective 9/1/05
Clarifies Right to Carry Handgun in Vehicle While Traveling
DATE:August 30, 2005
PRESS RELEASE
It is well established in Texas that a person who is traveling has a right to possess a handgun for personal protection. The practical problem with this right has historically been that courts have disagreed on the definition of “traveling�. The legislature has likewise never defined “traveling� because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.
HB 823 becomes effective September 1, 2005, shoring up the right of citizens to carry a concealed handgun while traveling. There have been many inquiries to my office from citizens and media regarding the upcoming change in the law and what it means.
HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang.
In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle. There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling� where the citizen is cloaked with the presumption per the terms of the new statute. Under those circumstances the citizen should be allowed to proceed on their way.
HB 823 represents the first time a presumption has been crafted in favor of a defendant in the modern penal code of Texas. The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. If the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists. By enacting this evidentiary standard in conjunction with the presumption, the legislation is intended to have the practical effect of preventing in the first place the arrest of citizens who meet the newly specified prerequisites of being a presumed traveler.
It should be noted that the very real problem of citizens having to prove their innocence after arrest by the assertion of their right to carry a firearm while traveling was the reason for a 1997 legislative change which replaced the “defense� of traveling with a classification of the statute of UCW as instead entirely “inapplicable� to a traveler. This change was well-intentioned but did not have the intended effect of protecting honest citizens from potential arrest because the term “traveling� was still left to individual police or judicial officials to define on a case-by-case basis. As a consequence, law-abiding citizens who availed themselves of their right to have a handgun while traveling continued to face arrest and often later prevailed only in a court of law after proving that they were indeed traveling.
In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances. For example, to require someone to have an overnight stay in a journey in order to be classified as a traveler would be unfair to persons traveling great distances in one day. Likewise, a requirement that a citizen be “crossing county lines� may make no sense, such as in areas of Texas where travelers drive hundreds of miles without leaving a single county. Moreover, the ability of police to elicit such evidence and consistently apply its subjective terms on the street in a traffic stop has not proven practical, at all. The new statute instead focuses on a defined set of relevant, objective facts that are capable of being determined on the spot by law officers.
There are several additional important points that should be made in regard to the enactment of HB 823 and its interface with current law.
HB 823 does not give “everyone the right to carry a gun in a car�. State and federal laws applicable to firearms must be noted in conjunction with the new statute’s terms, particularly the limitation of the presumption to persons who are “not otherwise prohibited by law from possessing a firearm.� For example, persons subject to an active protective order are not covered by the presumption, nor are persons with any felony conviction or even some misdemeanor convictions for offenses, e.g., family violence. The presumption is likewise inapplicable to persons associated with a criminal street gang, even if they have no conviction for any offense. These as well as all other existing limitations on firearm ownership and/or possession make the new statute inapplicable to persons covered by such prohibitions.
Furthermore, as stated in the statute, the presumption will not apply to persons who are otherwise engaged in any criminal conduct. This would include persons who are driving while intoxicated, driving recklessly, committing criminal mischief, or committing any other criminal offense outside that of a minor traffic infraction.
The presumption also does not apply where the gun is openly displayed.
The enactment of HB 823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. I am confident that the new law will assist law enforcement in doing its job while at the same time protecting law-abiding citizens from the threat of arrest for merely exercising their right to arm themselves while traveling----a right to which they are already entitled.
For further information, contact State Representative Terry Keel, 512-463-0652."
Again, my emphasis added. It's VERY important to note that this is ALL oriented toward "travelers" and yet does not redefine or define travelling. The bottom line is that if you're not travelling, you can STILL be prosecuted for having a handgun in the car without a CHL.
The ONLY thing different is that now the STATE has to prove you're NOT travelling. Before the passage of the law YOU had to prove that you WERE travelling.
