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Charles L. Cotton wrote: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.

baldeagle wrote:

Charles L. Cotton wrote: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.

Charles L. Cotton wrote:

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.

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

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

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.

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.

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.

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.

JJVP wrote:

Charles L. Cotton wrote:

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

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.

JJVP wrote:

Charles L. Cotton wrote:

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.

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?

JJVP wrote: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.

Charles L. Cotton wrote: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.

Charles L. Cotton wrote: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.

KD5NRH wrote: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.

cbr600 wrote:

KD5NRH wrote: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?

KD5NRH wrote:

Charles L. Cotton wrote: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?

baldeagle wrote:

Charles L. Cotton wrote: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.

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

Charles L. Cotton wrote:

KD5NRH wrote:

Charles L. Cotton wrote: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.

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

Charles L. Cotton wrote: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.