Failure to ID

[John Fernandez]

After watching the local open carry informational meetings, I see where the threat of arrest for failure to ID has been mentioned. I understand that the law say's you must provide your LTC and Identification when carrying; I thought the penalty was removed. What am I missing that would get you arrested for failure to identify?

[ScottDLS]

After watching the local open carry informational meetings, I see where the threat of arrest for failure to ID has been mentioned. I understand that the law say's you must provide your LTC and Identification when carrying; I thought the penalty was removed. What am I missing that would get you arrested for failure to identify?

I guess they could arrest you for Unlawful Carrying of a Weapon (46.02), since you can't carry without a license. The biggest question seems to be do the police have reasonable suspicion to detain someone simply for carrying.

It's akin to stopping someone for driving, because it's illegal to drive without a license. Texas transportation code actually says the police CAN do this, but SCOTUS has disagreed since 1979.

[TXBO]

Refusing to identify while open carrying would just show incredibly bad judgement..... and frankly, accomplish nothing.

[cb1000rider]

Unlawful Carrying of a Weapon (46.02) is not the same as an arrest for failure to identify. As I understand it, an arrest for failure to identify can't stand on it's own - at least not past the court room unless associated with some other reason for a stop. Or unless false information was provided.

It's pretty clear that for the time being some PDs will take carrying of a firearm as enough justification to ask for ID. I'm quite sure that this will eventually get sorted out in the court system.

Bottom line is - from my understanding - you shouldn't be arrested for "failure to ID" alone - assuming you're not suspected of being in a crime or subject to a legal stop that requires ID for "reasonable" means - such as a traffic or Terry-type stop. My guess is that if the PD feels justified enough to stop you for carrying, the Terry stop rules apply and you'd better ID.

[TXBO]

Unlawful Carrying of a Weapon (46.02) is not the same as an arrest for failure to identify. As I understand it, an arrest for failure to identify can't stand on it's own - at least not past the court room.

It's pretty clear that for the time being some PDs will take carrying of a firearm as enough justification to ask for ID. I'm quite sure that this will eventually get sorted out in the court system.

Bottom line is - from my understanding - you shouldn't be arrested for "failure to ID" alone, but it has happened in the past.

Edit: The only valid reason for a "failure to ID" arrest is providing FALSE information.

If you don't ID, you'll be arrested for unlawful carry, not failure to id. Once arrested, you'll have to show id, so why not just show it up front?

[LikWid]

Why not show it? Only reason to not show it, in my opinion, is if you don't have it on you. Which, on the video, the chief stated you will NOT be arrested for it, if you have a TEXAS CHL/LTC, and they can pull it up with your information.

[cb1000rider]

There are those that believe that we're approaching a "papers please" state and that unexercised rights go away.

Seems like the practical thing to do, if I were a police officer, in that circumstance is to detain/arrest until a license can be provided. How legal it is to ask for ID based on carrying a legal weapon is a little more open to interpretation....

[Ruark]

I guess they could arrest you for Unlawful Carrying of a Weapon (46.02), since you can't carry without a license. The biggest question seems to be do the police have reasonable suspicion to detain someone simply for carrying.

It's akin to stopping someone for driving, because it's illegal to drive without a license. Texas transportation code actually says the police CAN do this, but SCOTUS has disagreed since 1979.

Yes, but that has been brought up a hundred times, and was addressed in the new legislation with an amendment which specifically allows LEOs to ask for your CHL and ID. Of course, they have to detain you momentarily in order to do so.

[twomillenium]

What amendment was that?

[cb1000rider]

Of course, they have to detain you momentarily in order to do so.

I wasn't aware of legislation that specifically allowed detaining someone due to the mere presence of an openly carried handgun, which is what some (not all) PDs are going to do.

I think that this is still a pretty decisive issue as there are those (myself included) think that you shouldn't be subject to being detained for doing an otherwise legal activity, unless you're doing it wrong or illegally. Doing it any other way results in a stop-and-detain on-demand situation. Allowing LEOs to stop people at-will with firearms is a risky situation - and I know I won't get into that situation voluntarily until it gets cleaned up.

I was aware that only "licensed" people are allowed to openly carry in TX - so in the case of a valid Terry-type stop, demanding a CHL is legal.

I am aware that not providing CHL is a crime punishable by nothing. But in the case of openly carrying or in the case of concealed carry (outside of a motor vehicle) - an arrest for unlicensed possession is probably warranted if CHL wasn't provided...

Did I get something wrong?

[Papa_Tiger]

I guess they could arrest you for Unlawful Carrying of a Weapon (46.02), since you can't carry without a license. The biggest question seems to be do the police have reasonable suspicion to detain someone simply for carrying.

It's akin to stopping someone for driving, because it's illegal to drive without a license. Texas transportation code actually says the police CAN do this, but SCOTUS has disagreed since 1979.

Yes, but that has been brought up a hundred times, and was addressed in the new legislation with an amendment which specifically allows LEOs to ask for your CHL and ID. Of course, they have to detain you momentarily in order to do so.

Show me the text of the amendment in HB 910 as enrolled and signed by Governor Abbot and I'll believe you.

There was a failed amendment to allow police officers to do what you are saying: House Reading 2 Amendment 16 Text

This amendment, along with many others was tabled meaning it didn't make it into the law.

The amendment that was added in the Hosue, stripped from the Senate Committee report, added again (sort of) in the Senate and then left out of the final bill would have prevented officers from asking for your CHL solely on the basis of openly carrying a handgun in a shoulder or belt holster. It is the absence of such an amendment (and one might say the addition and removal of the Dutton/Huffines amendments) that has emboldened law enforcement to assert that they have a right to stop you to ask for your LTC absent reasonable suspicion under the 4th Amendment, Terry v. Ohio etc.

[cb1000rider]

There was an amendment stripped that would have explicitly prohibited LEOs from asking for ID/CHL on the basis of open carrying alone. That prohibition - like similar prohibitions in other states (like Oklahoma) would have cleared it up. So it's been left intentionally vague... And if that's what it takes to get it to pass, I'm fine with that.

If it's explicitly allowed now - I need to get updated. The absence of being prohibited is not the same as being allowed...

[tbryanh]

From what I gathered from the YouTube videos

"Open Carry Informational Meeting I | Houston Police Department | Live Event"

"Open Carry Informational Meeting II | Houston Police Department | Live Event"

Constitutional carry in the state of Texas is illegal. There is a law that says you cannot carry. The CHL (LTC) provides an exception to the law. A LEO can therefore assume you are breaking the law when you carry and can detain you until you prove you are not breaking the law.

This is different than driving. Driving is not illegal in the state of Texas. There is no law that says you can't drive. There is a law that says you must have a driver license if you drive, but there is no law that says driving is illegal.

The act of driving does not give a LEO reasonable suspicion to suspect that you are breaking the law. The act of carrying does give a LEO reasonable suspicion to suspect that you are breaking the law.

[twomillenium]

Constitutional carry means I can carry any firearm whether it is concealed or not, at anytime on my property. I am also the owner of public property along with those who think firearm ownership should carry prison time. So, the state/s have issued licenses, to those who qualify, so that the anti-firearm owners of public property can go pound sand. (there are some restrictions on where we can't carry and those sure could use a look at to reduce the restrictions.

[srothstein]

Just as an explanatory note, when a police officer says he will arrest for failure to identify, he is probably referring to the charge in chapter 38 of the Penal Code and not chapter 46. There has always been a problem with officers not understanding this law. Section 38.02 is the law that says you must tell an officer your name, date of birth, and home address when you are arrested. It also says that you cannot lie about these three things if you are detained, a suspect, or a witness. I have lost count of how many officers have confused these and thought you must answer when detained, etc. Less commonly, I have heard officers argue that you also need to give them more info (such as phone, work address, or social security number).

The law itself is very clear and I have never heard of a court ruling other than what the law specifically says, but it could happen. This is especially possible because the concept of detention and arrest are easily confused or blurred. And I have heard of improper arrests under this law.