Question regarding open carry

[sunny beach]

I seem to remember this somewhere, I think it depends on the LEO that would respond. It isn't considered a public palce but is considered in the public view if there is no privacy fence and therefore there are prohibited activities(IE nude sunbathing, open containers of adult beverages PI)

If it's a real law, it should be easy to quote the actual words instead of all this speculation.

[srothstein]

The legal definition is in section 1.07 of the Penal Code. It says:

(40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Note that it does not mention ownership at all. Clearly, the common area of a shop is still private property (owned by some person or corporation). The legal question is then what is meant by access. Note than an unfenced front lawn is accessible to anyone (ok, let's say no posted signs on trespass). Can a delivery person walk up there? That is an easy way to think of access by the public.

But that is just the physical access. Courts have ruled that access does not have to be physical, but might be simply visual access. Can the public look in and see it? Then it is a public place. The way I was taught relied on the Fourth Amendment and may be a little harder for some to understand, but here goes. An exception to a search warrant exists if it is in plain view. This is defined as being where it can be seen by a police officer who is in some spot where he can legally be and he does not need to take any physical action to see it (such as lifting a cover or turning something around). If the cop could claim plain view on some evidence he saw, then that is a public place. So, a front yard is a public place, as is a back yard that doesn't have a privacy fence. Even your living room could be a public place if there is a large window and the curtains are open. There is actually a court case on that one from someone who liked to stand at a window while undressed.

And, to return this to the original topic, note that the disorderly conduct law makes it illegal to display a firearm in a public place in a manner that is calculated to alarm. You might not want to pose your classic Gatling gun in the living room with the barrels pointed out the uncurtained window. And if you can't do that, you certainly cannot carry your weapon openly on common area streets in your subdivision.

[ScottDLS]

The legal definition is in section 1.07 of the Penal Code. It says:

(40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Note that it does not mention ownership at all. Clearly, the common area of a shop is still private property (owned by some person or corporation). The legal question is then what is meant by access. Note than an unfenced front lawn is accessible to anyone (ok, let's say no posted signs on trespass). Can a delivery person walk up there? That is an easy way to think of access by the public.

But that is just the physical access. Courts have ruled that access does not have to be physical, but might be simply visual access. Can the public look in and see it? Then it is a public place. The way I was taught relied on the Fourth Amendment and may be a little harder for some to understand, but here goes. An exception to a search warrant exists if it is in plain view. This is defined as being where it can be seen by a police officer who is in some spot where he can legally be and he does not need to take any physical action to see it (such as lifting a cover or turning something around). If the cop could claim plain view on some evidence he saw, then that is a public place. So, a front yard is a public place, as is a back yard that doesn't have a privacy fence. Even your living room could be a public place if there is a large window and the curtains are open. There is actually a court case on that one from someone who liked to stand at a window while undressed.

And, to return this to the original topic, note that the disorderly conduct law makes it illegal to display a firearm in a public place in a manner that is calculated to alarm. You might not want to pose your classic Gatling gun in the living room with the barrels pointed out the uncurtained window. And if you can't do that, you certainly cannot carry your weapon openly on common area streets in your subdivision.

I don't buy that merely carrying a handgun openly on your own property is "displaying it in a manner calculated to alarm". Sure your front yard can be a "public place", but the mere fact of open carry isn't calculated to alarm. It may alarm some people in some neighborhoods, but absent pointing it or intentionally making some type of threatening movements or gestures, I don't think you get there. Pointing my MiniGun out the windows at passers by is much different than simply openly carrying a holstered handgun.

As for walking the common areas of the neighborhood while OCing...as discussed previously, it's not property under your control. So it's a 46.02 or 46.035 violation, not 42.01.

People OCing rifles at the Pro Gun Rallies don't get busted even though they're in a public place.

[JP171]

I seem to remember this somewhere, I think it depends on the LEO that would respond. It isn't considered a public palce but is considered in the public view if there is no privacy fence and therefore there are prohibited activities(IE nude sunbathing, open containers of adult beverages PI)

If it's a real law, it should be easy to quote the actual words instead of all this speculation.

sorry I guess I wasn't clear enough, I meant that I seem to remeber the discussion about public and private here on the board, the public place part was a bit of paraphrase but esentially correct with the law and case law interpretation of public place and view. it is the reason that you can be arrested for PI on your lawn in the front yard as well as be charged with public consumption of alcohol if your in your front yard seen from a public street. as SR said if the officer can see it without materially changing position or moving an object then its considered as occuring in a public place.

[srothstein]

I don't buy that merely carrying a handgun openly on your own property is "displaying it in a manner calculated to alarm". Sure your front yard can be a "public place", but the mere fact of open carry isn't calculated to alarm. It may alarm some people in some neighborhoods, but absent pointing it or intentionally making some type of threatening movements or gestures, I don't think you get there.

I tend to agree with you that just carrying a pistol on a belt is not a manner calculated to alarm, but I was not really discussing that aspect of the law. I was just looking at what a public place is.

The manner calculated to alarm is a weird piece to explain. I take it to mean that the person carrying the gun must be intending it to scare others. But others have taken the point of view that if you know someone will be made afraid by it and carry in that manner anyway, it is then calculated to alarm. And since I know that there are always people who will be scared of guns, the argument can be made that any carrying of a visible gun is a manner calculated to alarm. There are also other definitions, each of which can make it more or less easy to prove this point. I am unaware of any Texas cases which will define this phrase for us and recommend against being the test case.

One of my goals in my law enforcement career was to never have my name cited in an academy as a precedent maker in court cases. There is an old saying about people who live on the cutting edge of the law usually end up bleeding. I feel it is important to clarify the parts of the law I can, and warn people of the other parts, so they can make an intelligent and informed decision on how they want to act.

[C-dub]

Hopefully, if Texas does pass any OC laws they will address this issue.