But you can refuse entry for other reasons. Except for warrant, probable cause, etc., I don't have to let a LEO into my home. Right??? I can refuse entry based on "I don't want company right now". Nothing to do with the gun. The statute doesn't differentiate a private homeowner from a private business, so this would apply to the business as well.txinvestigator wrote:The bottom line is, as I have stated MANY times, that a private property owner cannot refuse entry to an off duty peace officer simply for the fact that the off duty is carying a gun. PERIOD.
All of your arguments about "the penal code does not require the person to articulate why" blah, blah, is just inane rehtoric.
A few questions about LEOs and CHL
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txinvestigator
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Grill King, if you open up your home and allow the general public in, then you could not exclude a cop SOLEY on the basis of him being armed. However, you don't do that, do you? You have people over by invitation, like a private club.GrillKing wrote:But you can refuse entry for other reasons. Except for warrant, probable cause, etc., I don't have to let a LEO into my home. Right??? I can refuse entry based on "I don't want company right now". Nothing to do with the gun. The statute doesn't differentiate a private homeowner from a private business, so this would apply to the business as well.txinvestigator wrote:The bottom line is, as I have stated MANY times, that a private property owner cannot refuse entry to an off duty peace officer simply for the fact that the off duty is carying a gun. PERIOD.
All of your arguments about "the penal code does not require the person to articulate why" blah, blah, is just inane rehtoric.
If the business owner is allowing people in, and then stops the off duty and says "no guns", he would not have a case. If he just refused entry to all off duty cops, then he would. But HOB isn't doing that.
*CHL Instructor*
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txinvestigator wrote:Odin,
The bottom line is, as I have stated MANY times, that a private property owner cannot refuse entry to an off duty peace officer simply for the fact that the off duty is carying a gun. PERIOD.
All of your arguments about "the penal code does not require the person to articulate why" blah, blah, is just inane rehtoric.
Can a private property owner refuse entry to a person without stating a specific reason?
TXI,txinvestigator wrote:Grill King, if you open up your home and allow the general public in, then you could not exclude a cop SOLEY on the basis of him being armed. However, you don't do that, do you? You have people over by invitation, like a private club.
If the business owner is allowing people in, and then stops the off duty and says "no guns", he would not have a case. If he just refused entry to all off duty cops, then he would. But HOB isn't doing that.
I agree and for most practical purposes and most real world circumstances, this should be a non- issue. I still believe the law was intended to close the loophole which made it a trespass offense every time a LEO not on official business crossed a ghostbusters or no guns sign.
The reality is, most (HOB and a few others excepted) businesses don't care if a LEO is armed or not (actually most probably do care, they want them armed!). Most won't refuse entry because of a firearm. Most would only refuse entry for the same (other than firearm) reasons they would refuse entry to anyone else: dress code, intoxicated, loud/obnoxious, etc., reasons that would allow entry refusal or requirement to depart.
I do agree that a LEO who abides by all other conditions for entry required of any other member of the public, cannot (and should not) be denied entry based on whether or not they carry a firearm into the business.
While I agree that a private home is bound by the same requirements as the business, reality is that I could (I wouldn't but I could) refuse entry based on a firearm and nothing would likely come of it. The law doesn't state that I cannot attempt (w/o force of course) to disallow entry, only that if they do enter it isn't an offense, so yes, they could still enter without it being a tresspass offense, but in a private home they wouldn't. If they were in my home by invitation and I rescinded the invitation, for reasons known only to me, there probably isn't much they could do. I believe this is not what they law was intending to address, the private home, but rather businesses open to the public.
For the record, LEOs armed or not, CHLs armed or not, are welcome in my home based on common interests, fellowship, etc., and not on their weapon carry status.
IANAL, but I belive they can. However, even the unstated reason cannot be because of race, sex, weapon carry status by a LEO, or other reasons not allowed by law.Odin wrote: Can a private property owner refuse entry to a person without stating a specific reason?
If you say "You cannot come in", I think that is OK, but it better be for valid cause. I think a business would be at risk for doing so, better to give the reason or the person MAY assume it is for a reason not allowed (which sometimes it is).
No law requires a reason be given by a private property owner for refusing entry, or for asking a person to leave the premises.GrillKing wrote:IANAL, but I belive they can. However, even the unstated reason cannot be because of race, sex, weapon carry status by a LEO, or other reasons not allowed by law.Odin wrote: Can a private property owner refuse entry to a person without stating a specific reason?
If you say "You cannot come in", I think that is OK, but it better be for valid cause. I think a business would be at risk for doing so, better to give the reason or the person MAY assume it is for a reason not allowed (which sometimes it is).
If no reason is given but the person is asked to leave, then the person being asked to leave has been given notice that he must leave or they will be giulty of criminal trespass. Regardless of their occupation or handicap or race or religion, etc...
If the person asked to leave feels that they are being discriminated against then their recourse is in the courts. But the private property owner is not required to sue to get someone to leave their property, the person asked to leave is required to sue to be given access to the property.
A police officer called to the scene of a 911 call where a caller states that he is a private property owner and wants a person to leave his business has a duty to respond to the call. Upon arrival the officer will have to evaluate the situation and decise what action, if any, to take.
What do you think the officer should do? Would do? What would you do?
FWIW, the Dallas Police Association has brought this issue up to their attorneys after off duty DPD officers were refused admittance to the House of Blues, and the DPA attorneys concluded that the HOB does have the right to refuse entry.
I agree with you as the law is written, this appears to be the case. However - does this seem fair to you from a business persons standpoint? If they don't want any guns on their property they should be able to preclude them.txinvestigator wrote:Grill King, if you open up your home and allow the general public in, then you could not exclude a cop SOLEY on the basis of him being armed. However, you don't do that, do you? You have people over by invitation, like a private club.GrillKing wrote:But you can refuse entry for other reasons. Except for warrant, probable cause, etc., I don't have to let a LEO into my home. Right??? I can refuse entry based on "I don't want company right now". Nothing to do with the gun. The statute doesn't differentiate a private homeowner from a private business, so this would apply to the business as well.txinvestigator wrote:The bottom line is, as I have stated MANY times, that a private property owner cannot refuse entry to an off duty peace officer simply for the fact that the off duty is carying a gun. PERIOD.
All of your arguments about "the penal code does not require the person to articulate why" blah, blah, is just inane rehtoric.
If the business owner is allowing people in, and then stops the off duty and says "no guns", he would not have a case. If he just refused entry to all off duty cops, then he would. But HOB isn't doing that.
Wasn't there another thread about an attempted law in reference to employees being allowed to leave firearms in their vehicles on company property regardless of employer policy? I am not sure of the details, but wasn't it shot down because it took away property owner rights?
This seems to be exactly what the trespassing law is doing.
PC30.05 states that if a person has been given notice that entry was forbidden for armed persons that an armed person who subsequently enters has committed criminal trespass.
PC30.05 (i) says that PC30.05 does not apply to peace officer, whether on duty of off duty.
All that means is that a peace officer who ignores a 30.06 notice (or verbal equivalent) cannot be charged with criminal trespass.
Nowhere does the penal code state that a peace officer has the right to remain on private property after being advised to leave the private property, unless the officer is engaged in the course of duty (answering a call, pursuing a suspect, serving a warrant, etc...).
An off duty peace officer may not be charged with criminal trespass for disregarding a notice that firearms are prohibited, but any person, including an off duty peace officer, may be advised to leave private property and no reason is required to be given by the property owner.
Scenario:
ODO approaches House of Blues door. Doorman scans ODO with metal detecctor wand and discovers concealed weapon. Doorman says "you may not enter with a weapon". ODO cites PC30.05(i). Doorman refuses to allow entry.
What next?
The ODO has no right to use force of any kind to enter the private business. The doorman does have the right to deny entry to any person. If either party calls 911 to resolve the situation the responding officer cannot force the private business to allow the ODO entry.
Now if the HOB calls for a police supervisor to come to the scene because an ODO is refusing to leave the premises what do you think is going to happen to the ODO. It would vary by department, but the department's general orders would almost certainly have a provision to address this sort of behavior and I would think that most departments would discipline the ODO for the situation.
If the ODO files a lawsuit alleging that he was denied entry based on his firearm, which he is allowed to carry per PC30.05(i) then the burden is upon the ODO to prove his case whereas the business owner can simply say "the person was told to leave and refused to leave so we called the police". The business owner is not required to disprove the officer's claim, the officer is required to prove his claim.
A LEO should understand all of this. This is similar to a person who wants to debate a traffic citation on the side of the road. The officer may or may not have written anerroneous citation. The driver may or may not be in violation. But the time and place to debate is in court, if the driver chooses to take it to court.
At the scene, the officer issuing the citation has the presumption of being justified in issuing the citation, just as the private business owner has the presumption of justification for advising a person to leave his place of business. If any party takes the issue to court anything could happen, but the party who brings the case would be required to prove his case (either that the citation was unjustified or that the business owner violated some statute by refusing entry).
PC30.05 (i) says that PC30.05 does not apply to peace officer, whether on duty of off duty.
All that means is that a peace officer who ignores a 30.06 notice (or verbal equivalent) cannot be charged with criminal trespass.
Nowhere does the penal code state that a peace officer has the right to remain on private property after being advised to leave the private property, unless the officer is engaged in the course of duty (answering a call, pursuing a suspect, serving a warrant, etc...).
An off duty peace officer may not be charged with criminal trespass for disregarding a notice that firearms are prohibited, but any person, including an off duty peace officer, may be advised to leave private property and no reason is required to be given by the property owner.
Scenario:
ODO approaches House of Blues door. Doorman scans ODO with metal detecctor wand and discovers concealed weapon. Doorman says "you may not enter with a weapon". ODO cites PC30.05(i). Doorman refuses to allow entry.
What next?
The ODO has no right to use force of any kind to enter the private business. The doorman does have the right to deny entry to any person. If either party calls 911 to resolve the situation the responding officer cannot force the private business to allow the ODO entry.
Now if the HOB calls for a police supervisor to come to the scene because an ODO is refusing to leave the premises what do you think is going to happen to the ODO. It would vary by department, but the department's general orders would almost certainly have a provision to address this sort of behavior and I would think that most departments would discipline the ODO for the situation.
If the ODO files a lawsuit alleging that he was denied entry based on his firearm, which he is allowed to carry per PC30.05(i) then the burden is upon the ODO to prove his case whereas the business owner can simply say "the person was told to leave and refused to leave so we called the police". The business owner is not required to disprove the officer's claim, the officer is required to prove his claim.
A LEO should understand all of this. This is similar to a person who wants to debate a traffic citation on the side of the road. The officer may or may not have written anerroneous citation. The driver may or may not be in violation. But the time and place to debate is in court, if the driver chooses to take it to court.
At the scene, the officer issuing the citation has the presumption of being justified in issuing the citation, just as the private business owner has the presumption of justification for advising a person to leave his place of business. If any party takes the issue to court anything could happen, but the party who brings the case would be required to prove his case (either that the citation was unjustified or that the business owner violated some statute by refusing entry).
The code only states that an off duty LEO can not be charged for Criminal Trespass solely on the basis of being armed. It does not stop a business owner from denying access for any other reason. Federal law will stop a business owner from denying entry based on a protected class.Penn wrote:I agree with you as the law is written, this appears to be the case. However - does this seem fair to you from a business persons standpoint? If they don't want any guns on their property they should be able to preclude them.txinvestigator wrote:Grill King, if you open up your home and allow the general public in, then you could not exclude a cop SOLEY on the basis of him being armed. However, you don't do that, do you? You have people over by invitation, like a private club.GrillKing wrote:But you can refuse entry for other reasons. Except for warrant, probable cause, etc., I don't have to let a LEO into my home. Right??? I can refuse entry based on "I don't want company right now". Nothing to do with the gun. The statute doesn't differentiate a private homeowner from a private business, so this would apply to the business as well.txinvestigator wrote:The bottom line is, as I have stated MANY times, that a private property owner cannot refuse entry to an off duty peace officer simply for the fact that the off duty is carying a gun. PERIOD.
All of your arguments about "the penal code does not require the person to articulate why" blah, blah, is just inane rehtoric.
If the business owner is allowing people in, and then stops the off duty and says "no guns", he would not have a case. If he just refused entry to all off duty cops, then he would. But HOB isn't doing that.
Wasn't there another thread about an attempted law in reference to employees being allowed to leave firearms in their vehicles on company property regardless of employer policy? I am not sure of the details, but wasn't it shot down because it took away property owner rights?
This seems to be exactly what the trespassing law is doing.
Texas code does not make it an offense for the business owner if the business owner denies entry to an off duty LEO who is armed. Because there is no criminal activity based upon either parties’ action…the police…if called, can not do anything about it as it a civil matter. As someone said earlier it would be a stand off. I would also assume (but you know what they say about assuming) that if the policy are called, they would probably try to error on the side of caution and ask their comrade to act reasonably in the face of stupidity and deal with it in the courts.
Now, if the LEO tries to assert his civil rights and tries to forcibly enter the premises, then he may be charged with something other than criminal trespass, i.e. breach of the peace or something stupid like that.
A little off topic, but google HOB and you could draw some conclusions as to why they might not want armed law abiding law enforcement types on premises. They might have to 'detain' some of the less than law abiding but money paying clientale....
Draw your own conclusions...
Personally, I won't go there after some google found reading....
Draw your own conclusions...
Personally, I won't go there after some google found reading....
So, how do other laws that effect CHL holders effect off Duty LEOs? For example, as a CHL holder, if I were pulled over for suspected DUI…I pass the field sobriety test and only blow a .079. I would not get arrested for the DUI but it would be entirely possible that the LEO arrest me for possession of a handgun while intoxicated. Could an off duty LEO possibly face the same charge in a similar circumstance? I believe that the arresting LEO would extend some professional courtesy and let the LEO go…but this neither here nor there. How does this affect those departments that require off duty officers to carry…does that mean as long as they are employed with that department they can’t drink because they are armed?
If you blew a .079 you may still be charged with DWI. You may also be charged with being in possession of handgun while intoxicated.pt145ss wrote:So, how do other laws that effect CHL holders effect off Duty LEOs? For example, as a CHL holder, if I were pulled over for suspected DUI…I pass the field sobriety test and only blow a .079. I would not get arrested for the DUI but it would be entirely possible that the LEO arrest me for possession of a handgun while intoxicated. Could an off duty LEO possibly face the same charge in a similar circumstance? I believe that the arresting LEO would extend some professional courtesy and let the LEO go…but this neither here nor there. How does this affect those departments that require off duty officers to carry…does that mean as long as they are employed with that department they can’t drink because they are armed?
PC46.035(D) applies to a CHL holder, so if the peace officer was carrying under his CHL then I suppose he could be charged (?), but he could simply say he was carrying under his peace officer license and then 46.035 would not apply to him.
For the LEO it would mean he would lose his TCLEOSE license in Texas so he could no longer be a peace officer if convicted of a Class B misdemeanor.
Some departments have a "no drinking while armed" policy. I don't know of any local departments that require an ODO to be armed and don't know how they would balance drinking while off duty with being armed.
Many cops also get a CHL so they can carry the weapon of their choice as opposed to a department mandated weapon. Some departments only allow the carrying of certain preapproved weapons while off duty. Carrying a non-approved weapon could get the officer in trouble at work but wouldn't be a criminal violation.
Does their GO prohibit consuming alcohol while armed? If not it seems like the department could be held liable if an ODO had a couple of drinks and used his weapon. Maybe they can only drink if they are at home?bauerdj wrote:Harris County SO requires ODO to be armed at all times.Odin wrote:Some departments have a "no drinking while armed" policy. I don't know of any local departments that require an ODO to be armed and don't know how they would balance drinking while off duty with being armed.
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srothstein
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I agree that it sounds kind of funny, but so did the ADA when it was first proposed. Many people felt the same way about serving blacks back in the 50's and 60's. Civil rights laws usually are against the norm of what people believe.Penn wrote:Is it your position that if someone was arrested based on 30.06, that they could fight it based on discrimination?
As for the suit, I think it would probably fail right now, but we are certainly headed that way. If the SCOTUS does rule that the 2nd is an individual right, we could easily move to armed citizens being a protected class. I do not expect this to happen in the near future, but I do see it as a distinct possibility, and the logical outcome of the individual right theory.
After all, you can be sued for interfering with a person's ability to vote, which is just his exercising another individual right under the Constitution.
Steve Rothstein