51 Rule Question

[G26ster]

I undertstand your point re: handog, but what about CHL in 1996? I believe this definition of "breaking the law" is subjective. If I clearly, legally, have a "Defense" at the time I commit an act, like carrying concealed on my person with CHL in 1996... am I "breaking the law"? In order to convict me at trial, the prosecution would have to refute my "Defense" beyond a reasonable doubt.

I believe you have answered your own question. If the law specifically allows you to go to trial (a defense requires a trial to be effective) you must have broken the law, though perhaps in an allowable way.

If it was an exception to the law or the law was not applicable (such as unlawfully carrying is not applicable to a CHL), then you would not have broken the law.

I don't see anything subjective about the term breaking the law. All a defense does is shift the burden of proof around a little bit.

If "Defense to Prosecution" means I have, as you said, "broken the law in an allowable way," can you explain PC 46.03 (e) to me. According to your definition all persons who follow all Federal and State rules when checking weapons in their baggage have "broken the law in an allowable way" and can legally be prosecuted.

I'm afraid I don't get it.

[Drewthetexan]

I undertstand your point re: handog, but what about CHL in 1996? I believe this definition of "breaking the law" is subjective. If I clearly, legally, have a "Defense" at the time I commit an act, like carrying concealed on my person with CHL in 1996... am I "breaking the law"? In order to convict me at trial, the prosecution would have to refute my "Defense" beyond a reasonable doubt.

I believe you have answered your own question. If the law specifically allows you to go to trial (a defense requires a trial to be effective) you must have broken the law, though perhaps in an allowable way.

If it was an exception to the law or the law was not applicable (such as unlawfully carrying is not applicable to a CHL), then you would not have broken the law.

I don't see anything subjective about the term breaking the law. All a defense does is shift the burden of proof around a little bit.

By shifting the burden of proof, you mean that instead of prosecution proving that you've actually done something illegal, you are in fact admitting to it and trying to prove that it was a justifiable or allowable action, according to the law?

For instance, shooting someone is always illegal, but under legally prescribed circumstances one may prove that the law exempts them from criminal prosecution. Defense to prosecution is not a measure of innocence, but culpability?

[srothstein]

G26ster,

Yes, that is exactly what I mean. It is illegal for you to have a firearm in the secured area of an airport. But if you can prove the defense, then you did it in an allowable way.

An even better example would be the CHL checking their handgun in their baggage at the airport. I have yet to fly without the counter clerk checking the gun to ensure it is unloaded. But it is illegal for a CHL to display the firearm. 46.03(e) would be the exception that allows them to win the case but they if they went to court.

I have to point out that this is sort of a trick question because what the law considers it and how it plays out in daily life are two different things. Technically you are breaking the law, but in normal real life situations everyone, including the cop, would sya ti was not illegal. This is a law shcool and police academy final type question so we understand to read the law as it is written first, then we can apply it. Why arrest someone you know is going to win because he has a defense? But there are cops who will do it for various reasons and it is not illegal arrest.


DrewtheTexan,

You have it exactly. If I violate a law, the prosecution must prove beyond a reasonable doubt that I committed each element of the offense. They do not have to disprove all defenses. But, if I then use a defense under the law, and enter some evidence, then the prosecution has to rebut my evidence. In some cases, I just have to prove my defense by the preponderance of the evidence. In others, I have to only enter some evidence of the defense and the prosecution then has to disprove it beyond a reasonable doubt.

This is why the definition of what a defense is is listed under the chapter heading of burden of proof. And being a measure of culpability is a great way to look at it. After all, the courts can not possibly say you did not do it (find you innocent). All they ever do is measure your culpability (guilty or not guilty). A not guilty verdict could mean the state did not prove you did it, or you might have had a defense or an affirmative defense, or a lesser culpable mental state than the law required for the offense. All of these are measures of culpability.

[G26ster]

G26ster,

Yes, that is exactly what I mean. It is illegal for you to have a firearm in the secured area of an airport. But if you can prove the defense, then you did it in an allowable way.

An even better example would be the CHL checking their handgun in their baggage at the airport. I have yet to fly without the counter clerk checking the gun to ensure it is unloaded. But it is illegal for a CHL to display the firearm. 46.03(e) would be the exception that allows them to win the case but they if they went to court.

I know you cannot carry in or into a secured area of an airport. But now that i re-read 46.03(e), it is even more confusing. 46.03 has nothing to do with "displaying" a firearm as you have stated, that I can see. 46.03(e) only carries a defense to prosecution for carrying in or into a secured area ((a)(5) IF you have already legally checked your firearms in baggage BEFORE entering the secured area. Please tell me how you can possibly carry a firearm into a secured area if you have already checked the firearm legally at check-in in an unsecured area?? 46.03(e) allows a defense to prosecution for violation of (a)(5) only. This is really confusing.

[srothstein]

Sorry for the confusion and making it worse. I did use the 46.03(e) improperly to show the defense for showing the gun as an example.

But you are wrong about 46.03 applying only to carrying. Obviously, if it is in your bags you are not carrying it, but when you read 46.03 carefully, it says "possessing or goes with". even when you check you luggage, it is still yours and you still possess it.

This is either a really bad case to use for the example, or the really perfect one. No one (well, in Texas) would ever think of arresting you for still possessing the gun after you have checked the luggage with it inside. But it is still a technical violation of the law. This is why I was saying that the technical reading of the law is so different from what happens in real life, 99.99% of the time. We all need to know the law well for the .01%, but the odds of it happening to us are just so small as to not be a cause of concern to most.

[G26ster]

Sorry for the confusion and making it worse. I did use the 46.03(e) improperly to show the defense for showing the gun as an example.

But you are wrong about 46.03 applying only to carrying. Obviously, if it is in your bags you are not carrying it, but when you read 46.03 carefully, it says "possessing or goes with". even when you check you luggage, it is still yours and you still possess it.

This is either a really bad case to use for the example, or the really perfect one. No one (well, in Texas) would ever think of arresting you for still possessing the gun after you have checked the luggage with it inside. But it is still a technical violation of the law. This is why I was saying that the technical reading of the law is so different from what happens in real life, 99.99% of the time. We all need to know the law well for the .01%, but the odds of it happening to us are just so small as to not be a cause of concern to most.

There's no doubt that you know a heck of a lot more than I do, and I thank your input and for bearing with me. But, knowing the legal definition that I still "possess" the gun, even after I have legally checked my bags, and then proceed without the gun into the secure area, is a technical violation of the law, is disturbing. That would mean I was technically breaking the law for ALL the off limits areas of 46.03.

1. If I leave my gun in the car in a school parking lot, and then go inside a building, as I still (legal definition) "possess" the gun, I have technically broken the law.
2.Same for the premises of a polling place if I leave it in the car.
3. Same for the court House parking lot
4. Same for the racetrack, etc., etc.

At least 46.03(e) gives me a defense to prosecution for entering the secured area of the airport. But using the legal definition, I have no defense to prosecution for all the other off limits areas of 46.03. That's even scarier to me. That tells me that all or most CHL holders are constantly technically breaking the law, and the only thing we have on our side is the "hope" that the "odds" are in our favor. I found this online:

"The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). Depending on how and when it is used, the term possession has a variety of possible meanings. As a result, possession, or lack of possession, is often the subject of controversy in civil cases involving real and personal property and criminal cases involving drugs and weapons—for example, whether a renter is entitled to possession of an apartment or whether a criminal suspect is in possession of stolen property."

Based on that, I think 46.03 should be changed to read, "...actually possesses...." which is described as, ""Actual possession is what most of us think of as possession—that is, having physical custody or control of an object" (United States v. Nenadich, 689 F.Supp. 285 [S.D. I'd feel better about that.

Thanks again for putting up with me

[srothstein]

The difference between the airport and the parking lot of the polling place is the physical location of the gun. You may be inside the polling place but you did not possess the gun in there. In the secure area, your gun went into it and you still possess it so there has to be the defense or exception.

And yes, some words are very vague in the law and possession is one of them. And yes, many of us technically break laws all of the time and do not know it or worry about it. One of my pet peeves is that the law should be clearly written in plain English and should clearly specify what is not allowed. No one can obey the laws without being able to understand them if they try to read them. Even worse are the laws we break by not knowing they exist, such as the city ordinances for each town we might drive through on any given day.

[G26ster]

The difference between the airport and the parking lot of the polling place is the physical location of the gun. You may be inside the polling place but you did not possess the gun in there. In the secure area, your gun went into it and you still possess it so there has to be the defense or exception.
.

Thanks. So you are saying that as my gun entered the secure area via the conveyor belt to the baggage area and on to the aircraft, it was "still in my possession. But in the polling place situation, the gun never left the car and went inside with me, so it was no longer in my possession. I agree, but it would be much clearer to simply write the law (46.03) to say , "...actually possesses...." and make 46.03(e) the exception Just MHO.