Displaying at someone's home?

[baldeagle]

Folks, we are making a mountain out of a mole hill. In the OP's scenario, there would be a technical violation of either TPC §46.02 or §46.035(a) depending on whether the friend was a CHL, but prosecution is almost impossible.

Chas.

I'm afraid I have to disagree with you, Charles. "Technical" violations of the law are still violations of the law (as you pointed out in your initial response) and can be used by malicious law enforcement personnel and prosecutors to harass honest citizens. All you have to do is get on the wrong side of someone, and you are now exposed to the threat of monetary loss (court fees, attorney's fees, fines, etc.) and the addition of a violation of the law to your record, which would make it harder to retain your CHL. And don't tell me it can't happen in America!

I prefer not to depend on the good graces of people in government who possess that kind of power over me. The law needs to be amended. The fact that legislators can't be bothered with fixing "technical" violations of the law simply points out how useless our current government is.

[JJVP]

Folks, we are making a mountain out of a mole hill. In the OP's scenario, there would be a technical violation of either TPC §46.02 or §46.035(a) depending on whether the friend was a CHL, but prosecution is almost impossible.

Chas.

I'm afraid I have to disagree with you, Charles. "Technical" violations of the law are still violations of the law (as you pointed out in your initial response) and can be used by malicious law enforcement personnel and prosecutors to harass honest citizens. All you have to do is get on the wrong side of someone, and you are now exposed to the threat of monetary loss (court fees, attorney's fees, fines, etc.) and the addition of a violation of the law to your record, which would make it harder to retain your CHL. And don't tell me it can't happen in America!

I prefer not to depend on the good graces of people in government who possess that kind of power over me. The law needs to be amended. The fact that legislators can't be bothered with fixing "technical" violations of the law simply points out how useless our current government is.

[JJVP]

Stephen is absolutely correct.

No person can give you permission to violate a Penal Code provision, so your friend cannot give you permission to violate TPC §46.035(a) and intentionally fail to conceal your handgun.

When you are in your friend's home, you are carrying pursuant to the authority of your CHL so TPC §46.035(a) applies. Your friend does not transfer control of his home to you merely by granting permission to enter with a gun, or to use the restroom, or to get a drink of water. Sorry, this isn't the least bit ambiguous and the courts would reject that argument summarily. At most, your friend would be "granting" you control over your own firearm, not his home.

As Stephen said, the OP's scenario is one in which a violation of TPC §46.035(a) would occur (intentional failure to conceal), but there is little chance of prosecution because there would be no complaining witness. Let's extend this hypothetical and say your friend's mother in law is Sarah Brady and she comes in and sees you handling your handgun. She panics and calls the police. It won't help for your friend to tell the police "it's okay, I said he could show his handgun" anymore than he could tell them "I gave him permission to bring his cocaine into my home." No one can give another person permission to violate the law.

Chas.

So then when I go to the gun range and take my weapon out of my bag to shoot, I am violating the law.

No. When you are at a gun range, you are are not carrying under the authority of your CHL because you are not violating TPC §46.02. You are engaging in a sporting activity.

OK, I'll grant you that one. Bad example.

When I go to a gun store, where the guns are out in display, they are violating the law.

No. It is their place of business, so there is no violation of TPC §46.02

The owner of the store owns and controls the store (premises). The employees just work there. They can only carry (open or concealed) if the employer grants them permission.

When I go to that same gun store and the employees are open carrying their guns, they are violating the law.

No. They are in their place of business so there is no TPC §46.02 violation.

The employees do no own the store. They are carrying under the authority of the owner of the store. He can prohibit firearms, open or concealed, by the employees. How is that different that me open carrying under the authority of the homeowner inside the homeowners house? The store owner allows the employees to open carry inside his business, the homeowner allows the CHL to open carry inside his house. What is the difference?

I could argue that the store is a public place but a home is a private place. How can open carry be OK in a "public" place but not on a private place.

Sorry to be a PIA, but it does not make sense to me.

All we need is the Brady Bunch mother in law to come into the gun range or gun store and call the police and everyone would be arrested, right? Make no sense to me but then again IANAL.

She can call all she likes, but there is no Penal Code violation. As a practical matter, when the dispatcher hears that the Brady Bunch Mom is reporting the presence of guns in a gun store, no officers will be responding.

Chas.

[Charles L. Cotton]

When I go to a gun store, where the guns are out in display, they are violating the law.

No. It is their place of business, so there is no violation of TPC §46.02

The owner of the store owns and controls the store (premises). The employees just work there. They can only carry (open or concealed) if the employer grants them permission.

It is much easier for a property owner/employer to confer "control" over commercial property to an employee than for a home owner to do so with a private residence as in the OP's scenario. While employees work for their employer, they can also be in control of the property. It is this control that makes carrying legal, not the owner's permission.

When I go to that same gun store and the employees are open carrying their guns, they are violating the law.

No. They are in their place of business so there is no TPC §46.02 violation.

The employees do no own the store. They are carrying under the authority of the owner of the store. He can prohibit firearms, open or concealed, by the employees. How is that different that me open carrying under the authority of the homeowner inside the homeowners house? The store owner allows the employees to open carry inside his business, the homeowner allows the CHL to open carry inside his house. What is the difference?

As I noted above, permission to carry is meaningless; it's "control" of the premises that counts. A homeowner is not giving you control over his home, but an employer can give control to his employees.

I could argue that the store is a public place but a home is a private place. How can open carry be OK in a "public" place but not on a private place.

Public v. private doesn't matter, but commercial property v. private property and employee v. guest does matter, for the reasons I've explained.

Note also, that if the employer does not give an employee control over the property but merely gives him permission to carry, that permission is ineffective and the employee can either be changed with violation of TPC §46.02 if they don't have a CHL, or §46.035(a) if they do have a CHL.

Chas.

[KD5NRH]

Note also, that if the employer does not give an employee control over the property but merely gives him permission to carry, that permission is ineffective and the employee can either be changed with violation of TPC §46.02 if they don't have a CHL, or §46.035(a) if they do have a CHL.

You know, if we had a Constitutional requirement that common sense be applied to any interpretation of the law, I think most people would agree that the guy with a gun has some degree of control over the property by default.

[KD5NRH]

It will be a fact question for the judge or jury. However, you most certainly can give someone control over your home when you are away. Giving someone control over your home when you are present would be problematic to say the least. The biggest problem would be that no one would believe you. Would your guest have the authority to exclude you, your wife and your children from your own home? I rather doubt it.

I cannot (easily) exclude my wife from our home, nor can she do the same to me. Does that mean that no one has control over our home?

[cbr600]

You know, if we had a Constitutional requirement that common sense be applied to any interpretation of the law, I think most people would agree that the guy with a gun has some degree of control over the property by default.

Like that scene in Passenger 57?

[sjfcontrol]

You know, if we had a Constitutional requirement that common sense be applied to any interpretation of the law, I think most people would agree that the guy with a gun has some degree of control over the property by default.

Like that scene in Passenger 57?

I was going to say that THAT would give the BG control over your property by default.

[Charles L. Cotton]

It will be a fact question for the judge or jury. However, you most certainly can give someone control over your home when you are away. Giving someone control over your home when you are present would be problematic to say the least. The biggest problem would be that no one would believe you. Would your guest have the authority to exclude you, your wife and your children from your own home? I rather doubt it.

I cannot (easily) exclude my wife from our home, nor can she do the same to me. Does that mean that no one has control over our home?

"Control" isn't an issue in this example because both you and your wife own the home. Even if it was separate property, both control the home since you are married and both live there. This is much different from from a guest. Also, my reference to authority to exclude someone from your home was just an example of control or lack thereof.

Chas.

[Charles L. Cotton]

Folks, we are making a mountain out of a mole hill. In the OP's scenario, there would be a technical violation of either TPC §46.02 or §46.035(a) depending on whether the friend was a CHL, but prosecution is almost impossible.

Chas.

I'm afraid I have to disagree with you, Charles. "Technical" violations of the law are still violations of the law (as you pointed out in your initial response) and can be used by malicious law enforcement personnel and prosecutors to harass honest citizens. All you have to do is get on the wrong side of someone, and you are now exposed to the threat of monetary loss (court fees, attorney's fees, fines, etc.) and the addition of a violation of the law to your record, which would make it harder to retain your CHL. And don't tell me it can't happen in America!

I prefer not to depend on the good graces of people in government who possess that kind of power over me. The law needs to be amended. The fact that legislators can't be bothered with fixing "technical" violations of the law simply points out how useless our current government is.

How in the world is law enforcement going to be aware of the event is taking place in order to make an arrest? Folks, we have enough real problems to solve in 2011 (employer parking lots, campus-carry, range protection, to name a few), so let's not get wrapped around the axle over something that, as a practical matter, has no chance of coming up.

The same laws apply to gun shows and I've never heard of a non-CHL being arrested for UCW, or a CHL being arrested for intentional failure to conceal, at a gun show. I know some argue this is a sporting event, but it gun shows are not sporting events by any stretch of the imagination.

Chas.

[Charles L. Cotton]

In the Op case, can't calim that he is voluntering as Firearms Instuctor and engaging in said sport?

Now that's an interesting approach that may work. However, there's a much easier way to handle this, if people really are worried about criminal prosecution. The instructor can simply lend a handgun to his friend for purposes of the instruction. This is perfectly legal. So the homeowner has possession of the gun in his home and the instructor is merely using it for the "class."

Before someone argues that when the instructor handles the gun it is "on or about his person," this too is a red herring. No LEO is going to know about it, but if he does no LEO will make the arrest, but if he does, no DA will accept the charges, but if he does, the judge will throw it out.

We really are worrying about a Unicorn stampede folks.

Chas.

[puma guy]

It will be a fact question for the judge or jury. However, you most certainly can give someone control over your home when you are away. Giving someone control over your home when you are present would be problematic to say the least. The biggest problem would be that no one would believe you. Would your guest have the authority to exclude you, your wife and your children from your own home? I rather doubt it.

I cannot (easily) exclude my wife from our home, nor can she do the same to me. Does that mean that no one has control over our home?

This is getting ridiculous. "Control" isn't an issue in this example because both you and your wife own the home. Even if it was separate property, both control the home since you are married and both live there. This is much different from from a guest. Also, my reference to authority to exclude someone from your home was just an example of control or lack thereof.

Chas.

Just find out who has the TV remote and you'll know who is in Control.

[sjfcontrol]

Just find out who has the TV remote and you'll know who is in Control.

In MY household, the person who controls the remote, is himself controlled by my wife. Kind of a "remote control remote"

[terryg]

How in the world is law enforcement going to be aware of the event is taking place in order to make an arrest? Folks, we have enough real problems to solve in 2011 (employer parking lots, campus-carry, range protection, to name a few), so let's not get wrapped around the axle over something that, as a practical matter, has no chance of coming up.

Mr Cotton,

I agree that I would rather Legislative elbow grease be applied to issues that are having an impact. A parking lot bill that prevents my employer (a private university) from taking disciplinary action against employees leaving weapons in the car would be one that - for me - would have the greatest impact on how often I can be equipped to protect myself.

But from a purely technical legal perspective, I hope you will indulge my continued probing of this issue on more time:

You have explained quite clearly and convincingly why the circumstances described by the OP would technically be a violation of TPC §46.035(a). But as this seems to defy some measure of common sense, and as I am NAECRAL (not anything even closely resembling a lawyer), is there not any written law or case law precedent completely unrelated to CHL or MPA or castle doctrine regarding the ability of a homeowner to authorize a guest in their home (not give control over, but authorize) to assume the same legal rights they are afforded while on their property? I can't think of a perfect analogy, but is there no legal concept that can be drawn upon other than weapons legislation?

[OldCannon]

I swear, this dead horse has been beaten so much, all that's left is a tail and hooves.