“Unusually Zealous” Open Carry
BY Herschel Smith
8 years, 10 months ago
Texas is starting off the new year with a bang: A statewide gun law that doesn’t make much sense.
“Unfortunately, this law was not written very well. It’s not very clear…I can read it one way, I can read it another way,” said Donna Edmundson, the city attorney for Houston, at a town hall meeting two months ago. The law—which will make Texas the 45th and largest state to allow citizens with permits to openly carry handguns—goes into effect on January 1.
But by the end of that hour-and-a-half session, which was also attended by the police chief and district attorney, very little had been resolved.
Now, as they anticipate anticipate an uptick in 911 calls reporting people walking the streets with guns, police departments across the state are still trying to figure out how—and if—they can enforce the law, which legal experts say is marked with gaping loopholes and ambiguities.
For one thing, legal experts say, it’s not clear if the law allows police to detain someone who they suspect is open carrying without a license. Some districts are training police to ask to see a license only if an individual is engaging in otherwise suspicious activity. Others say they are free to ask because there is reasonable suspicion that the person may be committing a crime—unlawfully carrying a gun without a license.
Even trickier for police officers is what happens when a citizen is asked and refuses to show proof of an open-carry license. According to the Dallas Morning News, there is no penalty in the law for license holders who refuse to do so:
[C]ase law in Texas could prohibit police from arresting that person, since the action has no penalty.
But if the person isn’t a license holder, the officer can arrest him for unlawfully carrying a gun. So at what point does an officer know enough — like the person’s identity and whether he’s a license holder — to determine whether to make an arrest?
In other words, as it is written, the new open carry law is nearly impossible to enforce, said Geoffrey Corn, a professor of law at the South Texas College of Law in Houston. “It’s kind of like a Catch-22,” he told Fusion. Carrying without a license is illegal, but there’s no clear way for police to investigate if the person does indeed have a license to open carry or not.
“The way it’s gonna end up is that police are gonna have encounters with people who are open carrying that are going to escalate, and that are going to lead to an arrest,” Corn said. “And then that’s going to lead to defense attorneys saying the whole thing was tainted, and that the seizure was illegal because he had right to carry.”
Originally, the bill had a “no stop” provision, which barred police from asking anyone for their open carry license. Law enforcement groups fought it, saying it would prevent police from doing their jobs, while endangering the public. In response to that pressure, the bill was rewritten in its current form.
“Traditionally, the way legislatures tackle hard problems is to leave it to the courts,” George Dix, a professor of law at the University of Texas School of Law, told Fusion. “In this case, I suspect there was no politically acceptable language they could agree on, so they left it up to others to decide.”
The officials who pushed the bill through saw it as mostly a symbolic measure, he speculated. They weren’t necessarily concerned with how it would be enforced.
For all its problems, there is one thing abundantly clear with the new law: seeing someone on the street with a gun is not enough of a reason to detain them and ask for their license. Seeing someone with a firearm no longer makes them suspicious in the eyes of the law, even as regular citizens might be alarmed at the sight.
“What a lot of police are worried about is not that there’s gonna be open carry, but that there’s going to be a deliberate effort to exercise that right in what I might characterize as an ‘unusually zealous’ way,” said Corn. “And there can be a lot of chaos in those circumstances.”
Deliberate, mind you. Not accidental, but someone exercising a right deliberately. Deliberately! And not only that, but in an “unusually zealous” way!
So tell us Mr. Corn. What does it mean to deliberately exercise a right in an “unusually zealous” way? Be precise, please. Legally precise. And explain how that can be chaotic.
Or perhaps this is just some bullshit term made up for some bullshit article over something that won’t end up mattering a hill of beans to most people? Which is it, Mr. Corn?
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On January 4, 2016 at 11:46 pm, Fred said:
Hey, I got an idea. How about the police assess the environment they are in for criminal activity while interacting in a friendly and helpful manner with their neighbors and fellow citizens.
On January 5, 2016 at 9:10 am, TexTopCat said:
I would have preferred that the “No Stop” amendment would have been left in the law. However, during the hearings, there was an agreement that it was not necessary in that for a stop a police officer would have to have a cause more than a visible gun. There will be no issues in most places in Texas. The problems, if any, will be in the liberal anti-gun cities like Austin, Houston, San Antonio, Dallas and El Paso. If there is a problem, I expect to see it start in Austin by the city police attempting to see how far they can push LTC people.
On January 6, 2016 at 10:03 am, WarriorClass III said:
Senator Joan Huffman (R) fought against the “no stop” provision, saying it would be “de facto constitutional carry.” Exactly Mx. Huffman, what do you have against our Constitution?
If you live in state sen district 17, remember: Joan Huffman doesn’t like our Constitution.
And vote accordingly.
On January 5, 2016 at 12:32 pm, Archer said:
Mind the inconsistent messaging in the article.
We go from: For one thing, legal experts say, it’s not clear if the law allows
police to detain someone who they suspect is open carrying without a
license.
To: For all its problems, there is one thing abundantly clear with the new
law: seeing someone on the street with a gun is not enough of a reason
to detain them and ask for their license.
Which is it? Is the “one thing” about the new law “not clear” or is it “abundantly clear”?
Here’s an idea for the nervous reporter: The police can make a judgment, based on the totality of circumstances, and decide whether to stop/detain/ask for a license. Here’s two scenarios: 1. A man who looks to be in his mid-30s, dressed nicely, carrying a handgun on his hip in a leather holster, while talking with his friends and animatedly using his hands to emphasize his point; 2. A kid who looks to be in his mid-to-late teens, dressed like he doesn’t own a mirror (or indeed any sense of style or size), carrying a handgun down the front of his pants with no holster, shouting at similarly-dressed youth while using one hand to pull up on his shirt to display the gun, and making odd symbolic gestures with his other hand.
Let’s see. Two guys displaying handguns. Who to stop, who to stop….
On January 6, 2016 at 11:09 am, Tots4Masses said:
As a Texan I am happy to report no one has gone insane and began randomly shooting each other due to open carry. Despite what Liberals think adults can act like adults.
On January 6, 2016 at 3:39 pm, Billy Mullins said:
The “don’t stop” provision was an amendment introduced by DEMOCRATS for the (to me very valid) purpose of reducing the likelihood of cops doing a Terry stop on a person of color merely because they were carrying. We already have the notorious non-crime of DWB (driving while black) wherein black drivers are pulled over merely because they are black and driving a nice car. We don’t need ANYONE experiencing a Terry stop merely because they are non-white and carrying. The argument against the amendment was that it is unneeded and redundant since SCOTUS has already ruled that merely engaging in activity which requires a license does not justify a Terry stop. I, for one was very much in favor of the amendment irrespective of who introduced it.
BTW, so far San Antonio PD has been cool about people carrying. There are business who bought and put up 30.02 signs (30.02 is the part of the Penal Code covering carrying a handgun) to make sure their stores are non-carrying zones. I try not to go there but disarm if it is unavoidable. Other than a greeter at Walmart giving me a major stink-eye, I have not observed any overt hostility to my carrying. In fact, In the 5 days since open carry became legal, I have actually been thanked twice (one fellow said it made him feel safer) and a couple of others who patted their hip and gave me a thumbs-up. I would expect any trouble to come out of – in order of likelihood – Austin, Houston or Dallas. I don’t figure it’s even gonna be an issue in the panhandle (Lubbock, Amarillo) or anywhere west of San Antonio. However, that being said, I carry my CHL clipped to my belt on the OPPOSITE side from my sidearm. No sense INVITING trouble.
On January 6, 2016 at 8:53 pm, henrybowman said:
Of course, 43 other states have open carry, many of them for decades, but Texas! Texas! Blood will run in the streets there because Texas! At least until the Kardashians do something else outrageous.