Updated on February 14, 2018
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.
Government 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 not 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.
In 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).
There 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).