Jasonw560 wrote:I should have bern clearer. If you were in public, carrying concealed, and you helped a little old lady with her groceries, and all of a sudden your 2nd amendment was showing, and you didn't know it.
Well, in our state, a deliberately unconcealed handgun is a crime, as well as unlicensed concealed carry, so there would certainly be RAS (reasonable articulable suspicion) for a law enforcement stop. Under those circumstances, you would be required to identify yourself.
That is where open carry states are different. Openly carrying a handgun is a legal activity, so it does not constitute RAS for a stop/detention.
But if it's unintentional? I guess there's still RAS, until you show your CHL and say, "Oops, sorry"?
NRA EPL pending life member
"The Constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government"- Patrick Henry
We have two conflicting laws on this in Texas. You get to decide how the courts would react. In the Penal Code, we the law on failure to identify. You cannot legally refuse to provide your name, home address, and date of birth when you are under arrest. You may refuse to identify but cannot falsely do so if you are a witness or a suspect. Note that the premise here is the investigative stop, so you are not under arrest and could refuse.
But, we also have the Government Code requiring you to provide your DL and CHL when identification is demanded by an officer. This is more information than the other law requires when arrested. It also does not limit the demand to when he can legally require identification. So, if you are stopped by an officer and asked to identify while carrying, you are required to provide the information even if not under arrest (per the exact wording of the law your interpretation may differ). But there is no longer a penalty for failure to do so.
With some officers, if you failed to provide the identification when asked while they are investigating a man with a gun call, they would probably assume there was a good reason to not give them the ID (such as illegally carrying or warrants out for you). They would simply put you under arrest for the unlawfully carrying (assuming you were still armed), then search you. If they find that there was no valid charge, they could unarrest you (let you go). But if you did not have the CHL on your person, they could book you for unlawfully carrying even if you had a CHL issued. You might win the court case, but you would be going to jail first.
This is one of those cases where we have to be very careful about internet videos and advise. Texas laws have some weird loopholes and applications and you need to be very aware of them when you are dealing with Texas police. In my opinion, the subject in the video was very lucky that the officer did not want to push it since he quoted court precedent not the law.
One example of this being a very touchy area is Texas' law on homosexual behavior. The court said it was unconstitutional but the law is still on the books. An officer could make an arrest on it even though you would win the court case very quickly. The wrong prosecutor could want to take it back to the SCOTUS to try to get their previous case overturned.
Norm's filed a complaint with the Portland police department. The chief of police made a statement that he's 'confident no civil rights were violated' during the stop, so it's clear more education is needed for the Portland PD on this 'Constitution' thingie.
I'll quit carrying a gun when they make murder and armed robbery illegal
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I'm a little late to the party on this one, but wanted to chime in on one branch of the conversation. I believe that the officer honestly (mistakenly, but honestly) thought that he had the right to do what he did. I also think that he stayed pretty reasonable when his authority was challenged by OC guy. Punishment for "contempt of cop" isn't in the statutes, but it does play out in the streets far too often. We didn't see that here. Good for the officer.
But it is important to realize that the detention and seizure were illegal. It doesn't matter how nice the officer was about it, he used his official power to detain a citizen and seize his property without the required justification for the use of that power (reasonable suspicion, probable cause, etc... depending on the official power being exerted). Taking all that into consideration, I don't think the officer should be fired, jailed, or otherwise punished. But I do think he should be trained. Especially if he covered OC guy's leg with the firearm.
And for those who are interested in the issue of "did the officer commit a crime" by his actions... I'll leave a few statutes that may help you form an opinion, one federal, and one for Texas.
Texas Penal Code - Sec. 39.03. OFFICIAL OPPRESSION.
(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor.
18 USC 13 § 242. Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if bodily injury results shall be fined under this title or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.
NRA Endowment Member. Texas LTC Instructor. NRA certified Pistol & Home Firearm Safety Instructor - Range Safety Officer
Any comments about legal matters are general in nature and are not legal advice. Nothing posted on this forum is intended to establish an attorney-client relationship.
It's funny that when I watched it I was thinking the guy was being such a jerk. Reading the 6 pages of comments here made me realize that the guy was me 20-30 years ago. Back then I had nothing to lose and stood my ground. Now I have a family, professional license, business and sadly I have been tempered into a sheep to keep others from interfering with my time. The time to whip out the papers and move along verses potentially going for a ride in the back of the squad car was an easy choice for me until today.
This has to be one of the reasons our country is in the shape it's in today. We (speaking of people like me) are busy and hurried while running around trying to accomplish what we can and fail to remember the rights we have were paid for with blood.
I don't think this LEO was being irrational but it's a signal that the laws were passed and the police force wasn't trained on how to deal with it. If state troupers shot out your tires for speeding I think everyone would be up in arms about it. This guy is trying to stop the police from breaking the law in his own way. Little by little the government takes away our freedoms and if we don't stand up for our rights then we will one day lose what our country was built on. Prayer at a high school football game- OMG.
I don't know the real purpose that this guy made this video but I thank him and those of you here on this topic for opening my eyes to the need to protect our rights at all cost and stop assuming others will carry the torch of freedom.
