An Open Letter to Texas LEOs

ChiefMcManusCJ
I wanted to write this on my personal blog because I didn’t want anyone to get the idea that Open Carry Texas is giving legal advice. No one should assume that I am giving legal advice because I’m not. This is an open letter to Texas law enforcement that believe they have the authority to stop Texans solely based on open carry. Some point to the fact that since the Dutton/Rinaldi/Huffines amendments weren’t added to HB 910 (the Texas Open Carry Law) it means they have the green light to stop us without probable cause (PC) or reasonable suspicion (RS). I will begin by saying that there are two legal arguments out there by attorneys arguing different interpretations of the law. Some I agree with and some I don’t based on my personal research into this issue. When I point out what the legislature actually said in passing the bill, they say, “see! Constitutional Carry didn’t pass!”

They are absolutely, 100% wrong. Constitutional Carry never even got a hearing in committee. The constitutional carry amendment was deemed “not relevant” to the bill. I was there. I saw it with my own two eyes and heard it with my own two ears. They were talking about the Dutton/Rinaldi/Huffines amendments that would have CLARIFIED and CODIFIED what is already existing law and case law: that law enforcement can’t demand to see ID based solely on the act of open carry absent any criminal conduct. So, let’s dig into the history of this issue and then try to figure out why Texas LEOs seem to be more afraid of open carry, that other states have had no issue with, than actual criminal activity. All codes mentioned below are specific to Texas and no other state.

FFJeffsonBillofRightsGovernment Code 411.205: “If a license holder is carrying a handgun on or about the license holder’s person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license or identification certificate issued by the department and the license holder’s handgun license.” The law does not differentiate between open or concealed carry. In fact, this law doesn’t do that at all. Nowhere in here does it say that a peace officer can demand to see a CHL (or soon to be License to Carry) either. It says when a peace officer “demands that the license holder display identification.” Once he legally demands identification, only THEN are you required to show your CHL (or LTC). So the question then becomes when can a peace officer demand identification? The Penal Code spells that out for us. Many are quoting this statute as proof that cops can demand to see a license of an individual.

Penal Code 38.02: “A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.” In plain English, this says that LEOs may NOT demand to see identification unless the person is under arrest. As peace officers are aware, an arrest requires probable cause. In order to have PC, they must have articulable facts that a crime is, was, or will be committed.

Chairman Phillips made clear during debate in removing the open carry protection amendment that, “The law is very clear. If you’re lawfully stopped, you have to show [your license]. Very clear.” He then clarified very succinctly, “Let me back up. If they have stopped them for a lawful reason.” Open carry is a not a lawful reason anymore. How so? Well, let’s get into some relevant case law in the United States that has ruled on this issue.

In United States v. Deberry, the court even mentioned Texas and was quite clear that the cops must have probable cause to demand ID. This is a concealed carry case, but the same principle applies to open carry (I’ll get into that in another case). The court found, “Even if this were Texas rather than Illinois, and carrying a concealed weapon was lawful except for felons and a few other classes of ineligibles, the police would have been entitled to accost (Note: if you read earlier in the case, they define “accost” as just an consensual or voluntary stop) DeBerry and ask him whether he was carrying a gun. They might have a hunch he was a felon and so violating the law. ? It would not matter, so far as the Fourth Amendment is concerned, as we explained earlier. But if the asking crossed over to commanding, so that DeBerry was stopped, then it would be essential that the officers have a reasonable belief and not a mere hunch that if he was carrying a gun he was violating the law. ?But they would have a reasonable belief, because this is Illinois rather than Texas.” Since carrying a gun is legal in Texas with certain exceptions for non applicability – like having a license – there is no reasonable belief that a crime is being committed and the mere presence of a gun doesn’t cut it as a valid reason for any non-consensual stop.

FFSAdamsPeaceableIn United States v Nathaniel Black, the court reiterated Terry v. Ohio in what constitutes the difference between an investigatory stop and a seizure (not free to leave): “To be lawful, a Terry stop ‘must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.'” It goes on, “lawful possession and display of a firearm by another…fails to support the conclusion that Officer Zastrow had reasonable suspicion to detain Black.” Finally, and perhaps the most destructive to this stop and frisk argument is where the court ruled, “Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”

Some have pointed to Penal Code 46.02 in defending their argument that because the law makes it unlawful to carry a gun, they have reasonable suspicion because they don’t know if the person has a license and is exempt. Penal Code 46.15 specifically states that 46.02 “does not apply to a person who…is carrying…a license…and a handgun in a concealed manner or in a shoulder or belt holster.” Nonapplicability. Means it doesn’t apply. So, absent articulable facts that the person is carrying illegally, you can’t default to “[a person illegally] in possession of a firearm.” The 4th Amendment is clear about requiring probable cause and law enforcement can’t use the rhetorical and asinine belief that “I don’t know if you’re a good guy or bad guy.” The default is always good guy unless they have articulable facts stating otherwise.

In Brown v. Texas, the court again ruled that, “to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct.” They may believe that the act of carrying is the reasonable suspicion, but they’d be wrong because, “Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant’s right to personal security and privacy tilts in favor of freedom from police interference.”

In Basin Flying Service v. Public Service Commission the court supported this principle, holding, “[w]hen a person is confronted with inconsistent statutes, by one of which he would be subject to duties or restraints, and by the other he would be exempt therefrom, he is entitled to the benefit of the statute most favorable to his freedom of action.” In other words, if cops feel that the law is confusing because there seems to be conflicting statutes in dealing with open carriers, the open carriers are “entitled to the benefit of the statue most favorable to [their] freedom of action.” Simply put, leave them alone or engage in a friendly conversation about gun rights and the weather. You don’t want to be the guy with the badge that gets dragged through lengthy and highly stressful criminal and civil trials under Penal Code 39.03 (Official Oppression), 18 U.S. Code § 242 (Deprivation of rights under color of law), or 42 U.S. Code § 1983 (Civil action for deprivation of rights).

OCT_logo_02There are other cases that frankly I’m too tired to flush out here, like Delaware v Prouse. My goal was to counter the argument and suggestion that some in law enforcement have posited that they can and will stop people for doing nothing more than openly carrying a holstered handgun.

That said, I still don’t understand why they even WOULD bother people not doing anything wrong. Some say, “just show your ID and you’ll be on your way.” Why? Why would anyone exercise their 2nd amendment rights just to throw away their 4th? Are not all of our rights equally important? Let’s address an aspect many aren’t even thinking about. Most males carry their licenses in their back pocket. Often, they use the same pocket as their firing hand and the location of their handgun. What do you think some officers are going to do when a citizen goes for a wallet to obtain his ID and a cop thinks he’s going for his gun?! Do we WANT more people to get shot because some in law enforcement feel the need to inconvenience and harass someone for exercising their rights? Some ask, “how is that harassment if we’re just asking a question? It’s harassment because they are impeding my normal course of life or business. You are stopping me from my freedom of movement for engaging in a legal activity.

Let me flip the question: what is so difficult about seeing a person who is just going about his business, not bothering or threatening anyone, and just leaving him alone? I believe that cops are more intelligent than a moth that sees a light bulb and can’t help but fly into it. They have enough real crime to deal with. Why even bother people carrying a HOLSTERED handgun? THAT is the real question.

It’s time that law enforcement stop trying to stop people from carrying in public and start recognizing that the more that do are actually a benefit to law enforcement. “An armed society is a polite society” means that when the people are armed, the criminals are more likely to behave for fear of being shot and/or killed. We make the job of law enforcement easier, not harder, if they simply recognize that simple fact. I’m not talking about vigilantism, but about serving as that first line of defense to criminal activity. Police can’t be everywhere and when seconds count they are only minutes away. We aren’t your enemy. We don’t want to be your enemy.

Those reading this post should understand that this is only my educated interpretation of the law and relevant court cases. This is not to construe legal advice. In fact, when confronted with a law enforcement officer that wants to assert his perceived dominance over you, it is your decision alone how to respond. You basically have two options: stand up for your rights and risk going to jail; or make the officer feel good about himself by presenting your CHL. In any case, always be as respectful as the respect paid to you or more so. And always, ALWAYS make sure you have a camera to record the encounter. Often, this can mean the difference between your guilt and innocence. I recommend a service like Self Defense Fund as insurance in case you ever need to your firearm in lawful self-defense. Use referral code “opencarry” so I know you joined from here (I get no financial benefit from you joining).

14 Comments on “An Open Letter to Texas LEOs

  1. This is really good info! Thanks, sir!

  2. I am an Oath Keeper and a member of Constitutional Sheriffs and Peace Officers Association. I agree and do not/will not ID someone solely on the basis that they are carrying a firearm in a lawful manner. I am a firm believer that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, SHALL not be violated…” and ” …the right of the people to keep and bear Arms, shall not be infringed.”

  3. I’ll really be glad when we can just exercise our rights without being bothered. As Donald mentions above, it is a shame when we have to buy back our rights only to have them trampled on. We did get licensed OC passed as of January 1st but we need to make sure we don’t get complacent and continue to push for constitutional carry next session. I imagine carriers will continue to be the legal citizens that we always have been and there will be no more crime from carriers than there has been. Hopefully we can use that to our advantage when we put up the new bill that erases ALL of the restrictions on our RIGHT to bear arms.

    Carry on brothers and sisters.

  4. CJ, perhaps it’s a distinction without a difference, but in Texas, we’re Peace Officers, not Law Enforcement Officers.

    I resigned from HPD in 1998, but I still have my TCLEOSE license, and it says “Peace Officer” on it. I suspect that those who still remember that they are Peace Officers are not going to be the “agents of the state” that are going to be the problem here.

    The FFL dealer I do my transfers through (when I buy from gunbroker, etc) is a SWAT officer. He, like many, is on our side. His email signature is
    “Socialism is the philosophy of failure, the creed of ignorance, and the gospel of envy. Its inherent virtue is the equal sharing of misery.

    [in here is a Texas flag with the word “secede” superimposed over the white and red]

    A Nation of Sheep breeds a Government of Wolves.”

    So I do have a high degree of confidence that problems will be few.

    • Well Said. The peace officer will respect law abiding citizens minding their own business who happen to be carrying a self defense firearm. The law enforcement officer will be a bully and a prick. Well said.

  5. This whole debate was settled upon ratification of the second amendment…”the RIGHT to keep AND BEAR ARMS SHALL NOT BE INFRINGED” Its plain enough.

    • You are correct about not being able to stop you if you driving to see if you have a license. That is because driving a car is NOT illegal. Unfortunately, carrying a gun is illegal UNLESS you are exempt, which is why you CAN be stopped and asked if you are exempt, if you say I don’t have to answer, it is reasonable for the Officer to arrest you for illegally carrying a gun in public. I don’t like or agree with it, but open carry is NOT legal, they only gave an exemption to CHL holders, so the burden of proof that you are authorized to carry in the open is on YOU.

      Also if someone calls the cops on you and reports you are carrying a gun in the open, that is a crime, the cops can investigate that report of a crime and needs to determine if in fact you are breaking the law or if you have a CHL and are exempt from the law. It is not reasonable for cops to assume you are have a CHL, if they can assume that with no proof then why can’t they assume you are on parole or probation, that would be ridiculous.

      The author would have you believe cops are just out being jerks, they have a job, they policy, the follow orders, if people call 911 they cannot just ignore reports of a possible crime and responding and confirming that the person has a CHL and is legal is REASONABLE.

      • By your logic, law enforcement agencies that don’t support open carry could legitimately stop someone every block to demand ID. Because there are exemptions, the state must have reasonable suspicion or probable cause that the individual does NOT meet the exemption. Remember that whole pesky “innocent until proven guilty.” Did you read the entire post where the courts have already ruled that open carry, where legal (as it will be in Texas come 1 January), is not grounds for a stop? The default cannot be “criminal until proven he’s not.” Yes, law enforcement has a job and it’s not to demand to see your papers for exercising a right. And yes, driving a car IS illegal without a license. You are wrong there too.

        Second, if someone calls about a gun, that doesn’t mean a crime is being committed. It is extremely reasonable to assume that the individual open carrying is licensed because criminals don’t open carry for fear of drawing attention to themselves. I’m sorry, but the law and the court precedent doesn’t support your argument.

        • If you are openly carrying and an officer stops you to see if you have your permit, then by all means refuse to give it to him. We need some case law to clear that matter up and you getting arrested for refusing to ID would help get rid of the “grey” area of the law.

        • While I agree that case law is needed and that is only possible by challenging the arrest, I can’t help but notice you prefer someone else to do it instead of standing up on your own. Is that by design, or do you not live in Texas? Just questions. Don’t read into them.

    • Nice article Top! As you know I’m an combat veteran also I find it interesting how we military, law enforcement and politicans sworn an oath to protect and defend the US Constitution and in some cases the state constitution, I’m ashamed that this country has gone to the way of tyrannical thugs, with all dues respect to these folks who pay extortion fees to basically so call exercise their so call rights to carry their weapons, what a disgrace that this country calls itself the land of the free only to find out that it’s really an delusional concept, what a shame that Americans gave up their so call rights begging for permission to carry, most argue to the point of being what I call “butters,” Texas should lead the way instead of being cowards to government, our forefathers are rolling in their graves, with all dues respect

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