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Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 12:29 pm
by ScottDLS
Charles L. Cotton wrote: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.
What specifically is required to grant someone "control" of your premises (by the meaning of 46.02)? If I let my brother stay in my home while I'm gone, presumably he would be in control of my premises. Would the courts summarily reject an owners ability to explicitly place his premises under control of a guest (orally or in writing), while the owner was present?
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 12:30 pm
by JJVP
Charles L. Cotton wrote: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. When I go to a gun store, where the guns are out in display, they are violating the law. When I go to that same gun store and the employees are open carrying their guns, they are violating the law. 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.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 12:32 pm
by Purplehood
It is apparent that the law needs to be fixed.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 1:11 pm
by Hoi Polloi
Purplehood wrote:It is apparent that the law needs to be fixed.
I just started a thread to discuss how.
If you could re-write & clarify the current weapons laws...
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 1:45 pm
by Charles L. Cotton
ScottDLS wrote:Charles L. Cotton wrote: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.
What specifically is required to grant someone "control" of your premises (by the meaning of 46.02)? If I let my brother stay in my home while I'm gone, presumably he would be in control of my premises. Would the courts summarily reject an owners ability to explicitly place his premises under control of a guest (orally or in writing), while the owner was present?
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.
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.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 1:50 pm
by Charles L. Cotton
JJVP wrote:Charles L. Cotton wrote: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.
JJVP wrote: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
JJVP wrote: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.
JJVP wrote: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.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 1:52 pm
by BobCat
Charles,
Thank you for your patience and answer.
I just very carefully re-read TPC46 and am amazed. A person could, in principle, be arrested for an act (showing his new pistol to his friend, at his friend's house) that seems totally commonplace and benign.
A long gun would be ok, but a handgun in a locked case ( e.g. taking it to TSA to check in for a flight) is illegal.
The fact that, lacking a complaining witness an arrest is unlikely, does not keep my head from spinning.
Regards,
Andrew
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 1:54 pm
by Charles L. Cotton
Purplehood wrote:It is apparent that the law needs to be fixed.
While I wouldn't be opposed to clarifying the law, we wouldn't be able to get anyone to carry the bill. The first question that is always asked when we seek a bill sponsor is "what problem are you trying to fix." Here there is a technical violation, but no problem since no one is going to be prosecuted.
That said, I'd be happy to see the Code amended to include "on property with the permission of the property owner or someone in control of the property" or words to that effect.
Chas.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 1:56 pm
by Charles L. Cotton
BobCat wrote:Charles,
Thank you for your patience and answer.
I just very carefully re-read TPC46 and am amazed. A person could, in principle, be arrested for an act (showing his new pistol to his friend, at his friend's house) that seems totally commonplace and benign.
A long gun would be ok, but a handgun in a locked case ( e.g. taking it to TSA to check in for a flight) is illegal.
The fact that, lacking a complaining witness an arrest is unlikely, does not keep my head from spinning.
Regards,
Andrew
I know and I agree. There are many technical violations that I would like to see cleared up, but there is only so much we can accomplish in a legislative session. We have to look for "real" problems, ones that are causing suffering, not merely those that can but don't.
Chas.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 2:02 pm
by Purplehood
Charles L. Cotton wrote:Purplehood wrote:It is apparent that the law needs to be fixed.
While I wouldn't be opposed to clarifying the law, we wouldn't be able to get anyone to carry the bill. The first question that is always asked when we seek a bill sponsor is "what problem are you trying to fix." Here there is a technical violation, but no problem since no one is going to be prosecuted.
That said, I'd be happy to see the Code amended to include "on property with the permission of the property owner or someone in control of the property" or words to that effect.
Chas.
Isn't that what I said?
Fixed. Amended.
It is apparent why I am not a lawyer.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 4:08 pm
by KD5NRH
Charles L. Cotton wrote:Purplehood wrote:It is apparent that the law needs to be fixed.
While I wouldn't be opposed to clarifying the law, we wouldn't be able to get anyone to carry the bill. The first question that is always asked when we seek a bill sponsor is "what problem are you trying to fix." Here there is a technical violation, but no problem since no one is going to be prosecuted.
That said, I'd be happy to see the Code amended to include "on property with the permission of the property owner or someone in control of the property" or words to that effect.
Chas.
Isn't there anything else coming up in the next Legislative session dealing with 46? It seems that a small clarification like that should be easy to tack on to any other bill that would amend the section.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 7:13 pm
by sawdust
Thanks to everyone for your insightful comments. Special thanks to Charles Cotton for providing the definitive interpretation as to how the statutes are currently written.
Maybe I should consider providing advanced astrophysics training instead; it would be less complicated.
So, to turn my original question around: If an individual wanted to obtain handgun orientation in the privacy of their home (
OK, OK, no live fire! 
), how could that individual accomplish it in a legal manner? By the responses, it seems that it cannot be done in the scenario that I am describing. Of course, if that individual already owned a handgun, then it would seem to be a moot point, as the owner of the handgun is also the one in control of the premises.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 7:23 pm
by Ameer
sawdust wrote:So, to turn my original question around: If an individual wanted to obtain handgun orientation in the privacy of their home (
OK, OK, no live fire! ), how could that individual accomplish it in a legal manner?
It seems the only way is to be taught by one of the special people who aren't required to conceal.
Or change the law. Or move to a state with better gun laws. Or have a home on the (shooting) range.
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 7:28 pm
by Beiruty
In the Op case, can't calim that he is voluntering as Firearms Instuctor and engaging in said sport?
Re: Displaying at someone's home?
Posted: Wed Oct 13, 2010 7:39 pm
by sawdust
Ameer wrote:sawdust wrote:So, to turn my original question around: If an individual wanted to obtain handgun orientation in the privacy of their home (
OK, OK, no live fire! ), how could that individual accomplish it in a legal manner?
It seems the only way is to be taught by one of the special people who aren't required to conceal.
Or change the law. Or move to a state with better gun laws. Or have a home on the (shooting) range.
Changing the law takes too long.
I've been to them other places and I ain't gonna leave Texas.
So I guess that does mean that I'll be playing in my "Home, Home on the Range, where (if) the buffalo roam", I can protect myself.
While not exactly on topic, but in speaking of legalities, I meant to add this little gem that I just discovered: apprarently it is now required that computer technicians have a Private Investigator's License in order to legally repair computers. I may have been engaged in criminal activity and not known it.
