Straight Talk About Open-Carry

[mikedude]

Good article.

[The Annoyed Man]

Open-Carry is Necessary in Texas to Prevent People from Being Arrested for Accidentally Exposing Their Handgun

This is one of the more commonly stated reasons for passage of open-carry in Texas. Reliance upon this argument by open-carry supporters is misplaced as Texas law is abundantly clear. In order to violate the current statute, a concealed handgun licensee must intentionally fail to conceal their handgun. Requiring only intentional conduct, rather than the typical standard of doing something “intentionally, knowingly or recklessly,” means that accidental exposure of a handgun does not violate Texas law.

Some open-carry supporters provide anecdotal claims that Texans have been wrongfully arrested for accidental exposure of their handgun. Even if these claims are accurate, such incidences or few in number and passage of open-carry will not relieve the problem. Any Texas peace officer who would arrest someone for unintentionally or accidentally exposing their handgun is abusing their authority and is arresting someone for an act that is clearly not illegal. Any officer willing to do this would find it even easier to arrest someone who is openly carrying simply by claiming that they put their hand on their handgun thus violating the Texas Disorderly Conduct statute.

I realize that it actually is anecdotal when I tell the story, but there is an active member of this forum who DID get arrested for an accidental exposure of his handgun when his shirt rode up as he stood up from a chair. The member is handog. His original thread was removed at his request, but his followup thread is posted HERE. As I recall, he did spend some time in jail, and he did have to spend money on an attorney, all because some soccer mom freaked out after she glimpsed his gun when his shirt rode up or something like that. He had 8 guns drawn down on him out in the parking lot, had his license suspended and his gun confiscated, and it took waaaay too long to get them back AFTER the judge dismissed the case. So yes, these things are probably pretty rare, but they DO happen. If passing licensed open carry would stop it from happening ever again, that would be a good thing.

One "documented" case is not justification to change any law. As noted in the article, if an officer will arrest someone for unintentionally failing to conceal, then it would be even easier to arrest a person openly carrying simply by stating they put their hand on their handgun and this was "calculated to alarm" in violation of TPC §42.01(a)(8).

If open-carry supporters testify in a House or Senate hearing that open-carry is needed to prevent being arrested for unintentional failure to conceal, then that will for someone to testify that this is a bogus claim. That won't help pass open-carry.

Chas.

At the very least there should be verbiage changed to provide a defense from prosecution somehow. If the CHL'r was documented as wearing clothing that would reasonably conceal the handgun then it should not be open to prosecution under any means.

The best way to avoid this word-dance is to pass licensed open carry in my opinion. If there was a phased implementation with a public education portion that was properly implemented we could avoid a lot of MWAG calls.

I find nothing to disagree with, and Charles, for the record, I am not even disputing whether or not it would be useful to testify to what happens to people like handog. I was just pointing out that we have personal knowledge of at least one person on this forum for whom this was not anecdotal. It really did happen to him. You are probably right that it doesn't happen often enough to use it as a justification for whatever changes should be made in the law. I was merely pointing out that it does actually happen, and so whether or not we choose to use that in our "strategery," neither should we be dismissive of it. Otherwise, and I mean this most sincerely and with no sarcasm intended, I bow to your superior wisdom in these things.

I also want to point out for the benefit of people who don't trust what Charles writes, or doubt his motives or support of the right to keep and bear arms, we owe an enormous debt of gratitude to Charles for all of the outstanding work he has done behind the scenes, at the highest levels, both in Texas and nationally, in order to secure an increasingly less restricted right to keep and bear arms. I have argued many times on these pages for "Constitutional Carry." I have also argued on these pages that it is politically necessary to get there in incremental steps—that we lost the full expression of our rights incrementally, and incrementalism will be politically necessary to regain that full expression. And by the way, THIS is probably the single biggest stumbling block between the most hotheaded supporters of OC, and the rest of its supporters. The hotheads don't accept the political necessity of incrementalism. They point to Oklahoma's recent legalization of OC. Well guess what......OK got OC incrementally. That is how we will have to get there too, by checking off a list of goals:

1. make licensed concealed carry legally possible; ✔
2. consolidate and expand the protections of CHL; not all of these need be accomplished to proceed to step 3; ✔
   
   1. 30.06, and increase number of places one can carry, like churches, etc., if no 30.06 posted; ✔
   2. pass MPA (because it expands the pool of people who may be lawfully in possession of a handgun while out and about, even without a CHL); ✔
   3. Parking Lot Bill; ✔
   4. Campus Carry; ✘
3. extend CHL to include licensed OC;
4. Unlicensed OC, licensed CC;
5. Constitutional Carry, with a CHL offered for purposes of interstate reciprocity......just like Arizona, Vermont, etc.

But, for this to happen requires a long term view and a recognition that politics is a long game. Those who are not willing to play the long game destabilize the body politic, often to the detriment of their own causes. Fools rush in where angels fear to tread, but the wise person is in it for the long game.

[Charles L. Cotton]

At the very least there should be verbiage changed to provide a defense from prosecution somehow. . . . If the CHL'r was documented as wearing clothing that would reasonably conceal the handgun then it should not be open to prosecution under any means.

Folks, everyone needs to understand just how significant it is that failure to conceal must be due to intentional conduct. Absent intent, there is no offense, pure and simple. The last thing we want to to change that language, or to create a "defense to prosecution." "Defenses" must be proven in court, which makes an arrest justified. Unless there is evidence of intent, not merely exposure of the handgun, then one of the required elements of the crime is missing and there is no probable cause to believe a violation has occurred.

Please don't buy the open-carry mantra that this is a problem; it isn't. If someone is arrested for unintentionally failing to conceal, then one of two things is true. Either there's a lot more to the story than is being reported, or the officer did not make a good faith arrest. (Remember, an officer cannot make a good faith arrest for that which is not unlawful.) There are very few "documented" cases of Texans being arrested for accidental/unintentional failure to conceal and I do not know of a single conviction. Contrast that with dozens if not hundreds of claims by people posting on OpenCarry.org about alleged law enforcement harassment of people carrying handguns openly in states where this is theoretically legal.

It's not broken, so there's nothing to fix. The "fix" could prove disastrous if the current legislature decided to adopt the standard mens rea (guilty mind) requirement of "intentionally, knowingly, or recklessly."

Chas.

[Heartland Patriot]

At the very least there should be verbiage changed to provide a defense from prosecution somehow. . . . If the CHL'r was documented as wearing clothing that would reasonably conceal the handgun then it should not be open to prosecution under any means.

Folks, everyone needs to understand just how significant it is that failure to conceal must be due to intentional conduct. Absent intent, there is no offense, pure and simple. The last thing we want to to change that language, or to create a "defense to prosecution." "Defenses" must be proven in court, which makes an arrest justified. Unless there is evidence of intent, not merely exposure of the handgun, then one of the required elements of the crime is missing and there is no probable cause to believe a violation has occurred.

Please don't buy the open-carry mantra that this is a problem; it isn't. If someone is arrested for unintentionally failing to conceal, then one of two things is true. Either there's a lot more to the story than is being reported, or the officer did not make a good faith arrest. (Remember, an officer cannot make a good faith arrest for that which is not unlawful.) There are very few "documented" cases of Texans being arrested for accidental/unintentional failure to conceal and I do not know of a single conviction. Contrast that with dozens if not hundreds of claims by people posting on OpenCarry.org about alleged law enforcement harassment of people carrying handguns openly in states where this is theoretically legal.

It's not broken, so there's nothing to fix. The "fix" could prove disastrous if the current legislature decided to adopt the standard mens rea (guilty mind) requirement of "intentionally, knowingly, or recklessly."

Chas.

I understand what you have written, Mr. Cotton. So I'm trying to reconcile that to daily life. For instance, I really would like to move to OWB carry. But I admit to having a fear of the weapon showing compared to IWB carry. I guess its a bit like when I first started carrying. Do you have any guidance for me other than the obvious "cover it up and forget about it"? I'm seriously looking for something to boost my confidence to take that next step, which I know others have done. As always, I appreciate the efforts you've made to get us to this point and help us get our rights back.

[cyphur]

At the very least there should be verbiage changed to provide a defense from prosecution somehow. . . . If the CHL'r was documented as wearing clothing that would reasonably conceal the handgun then it should not be open to prosecution under any means.

Folks, everyone needs to understand just how significant it is that failure to conceal must be due to intentional conduct. Absent intent, there is no offense, pure and simple. The last thing we want to to change that language, or to create a "defense to prosecution." "Defenses" must be proven in court, which makes an arrest justified. Unless there is evidence of intent, not merely exposure of the handgun, then one of the required elements of the crime is missing and there is no probable cause to believe a violation has occurred.

It's not broken, so there's nothing to fix. The "fix" could prove disastrous if the current legislature decided to adopt the standard mens rea (guilty mind) requirement of "intentionally, knowingly, or recklessly."

Chas.

As always, learn something every time I visit this forum. I appreciate the education Chas!

[Andrew]

Great article Mr. Cotton.
I'm a recent transplant to Texas, my business career lead to a transfer in '02. Prior I was a native born, long time resident of Nevada. I open carried for over 30 years without a single incident as seen on YouTube. I never went for a hike, mounted a horse, or entered the field for hunting or fishing without utility pistol on my hip. Nor did I fail to carry when I took my days receipts to the bank for deposit. Restaurants, gas stations, convenience markets, doctors office and once a hospital no problem, no controversy.Whether I was just a trustworthy looking guy or didn't seem to radiate menace, for what ever reason I never had a problem, in fact while in business dress going to and from the bank I had folks address questions to me as though I was a LEO, lol.
And you're right the "Activists" on the Strip or Downtown Las Vegas appear to be consciously confrontational, posture, attitude, expression, even the choice of weapon and holster seem to shout look at me!
Open carry for defense or utility is a valuable right I look forward to regaining here in Texas! Thank you for your selfless work on my behalf!

[dac1842]

Good article Charles, I am one that has gone on the record as being against open carry. Not many folks are successful in changing my mind, you have given some food for thought.

[TrueFlog]

Excellent article, Charles. Thanks for helping to educate the masses beyond this forum. I also appreciate you outlining both sides of the issue and providing an even-handed assessment. If I may, I'd like to add a couple of clarifications.

Open-Carry Will/Won’t Result in More Businesses Posting No Trespassing Signs

This is probably the single biggest issue that causes friction between the most ardent supporters of open-carry and people who currently hold a concealed handgun license. Open-carry supporters point to the experience and other states as evidence that there will not be a rash of “no guns” signs. Those who are concerned about this issue fear a repeat of what happened in Texas from the passage of the initial CHL statute in 1995 until the law was changed in 1997.

This phrase seems to imply that "supporters of open-carry" and "people who currently hold a concealed handgun license" are two distinct groups in opposition to each other. (Though perhaps I'm just reading it wrong.) I don't believe that to be the case. While there are many CHL holders who oppose Open Carry, there are also many who support it.

People Wanting Open-Carry Are In-Your-Face Cowboys

Some Texans fear that the only people who would actually carry a handgun openly are those who want to draw attention to themselves, who are potentially confrontational, and simply want to present a tough-guy image. While this claim is probably overblown, YouTube videos are available on the Internet of people in other states intentionally making a show of the fact that their openly carrying a handgun. The same people often appear to be baiting police officers attempting to create an incident that will allow them to later claim police harassment.

Incidents like those described in the preceding paragraph seem happen more often in states that allow unlicensed open-carry. There is every reason to believe that Texas CHL’s will behave as responsibly if open-carry passes, as they have for the preceding sixteen years. While there may be some such instances, there likely to be few in number and very infrequent.

I agree that such "In-Your-Face" incidents are likely to be rare in Texas, just as they are in states that currently allow OC. It's been said that well-behaved women seldom make history, and a similar sentiment holds for Open Carry. Well-behaved OC'ers seldom make the news or show up on YouTube. For every loud-mouth you see on YouTube, there are dozens of people who open carry without incident. Likewise, even though there were alot of OC supporters who mistreated certain legislators last session, there were also many who didn't lash out. Oftentimes, the respectful and responsible individuals get overlooked simply because they're not loud, obnoxious, or abusive. I believe that responsible OC'ers account for a silent majority among total OC'ers.

[Richard_B]

Chas,

I have two comments.

Firstly, Arizona has demonstrated that open carry (licensed or not) really is no big deal. (Tuscon and Phoenix are major metropolitan areas, not "in the sticks" as some assert about Arizona.)

The second is that we should remember that the origin of our state gun laws is reconstruction era Jim Crow laws aimed at the recently freed slaves (not the state's proudest moment), as were the laws of many states. Our current laws are nothing more nor less than a perpetuation of those bad laws. The legislators should be informed of just where they stand when they support such laws restricting the freedoms of all citizens of Texas.

Richard

[Excaliber]

Outstanding article written to inform rather than inflame - perfect!

[FormerTSgt]

Excellent pro/con article. As a former GA resident, I support Open Carry 100%. Granted, GA law is considerably different than TX (in GA, thankfully signs carry NO legal weight though by law certain buildings are off limits) and whilst we can *technically* carry in more places in TX (though again, signs having legal weight throws a wrench into this), we could OC in GA with a GWL. Well, again, excellent article and I hope to see Texas move into the OC column soon.

[GlockStockandBarrel]

I think it would be a good start to have it pass. But still like the comfort of having the handgun concealed and less attention to be drawn. But if the handgun was to become visiable by body movement and was seen, then maybe the normal citizen wouldn't think anything of it. There for "The Man with the Gun" might be a thing of the past. Just my thoughts on it.