"Possession of Unauthorized Firearms"

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sjfcontrol
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Re: "Possession of Unauthorized Firearms"

#31

Post by sjfcontrol »

Purplehood wrote:
sjfcontrol wrote:
Purplehood wrote:
As I understand it, the above is specifically verbal notice. There is no requirement for the wording to look like a 30.06 sign (let alone the legally mandated text size), when verbal notice is given instead.
Printing out the notice in a handbook is indeed, verbal notice.
The law does not speak of "verbal" notice. It refers to either written, or ORAL notice. Notice given in an employee handbook is written notice, and must be worded according to 30.06 in order to be legally binding. (i.e. a crime, as opposed to cause for dismissal.) The form for ORAL notice is not defined, so ANY oral notice (from an individual entitled to issue it) is valid.
I think you are interpreting the intent of the law incorrectly.

Please keep in mind that I am not a lawyer. At least I don't get any paychecks for my legal advice...

How so?
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Re: "Possession of Unauthorized Firearms"

#32

Post by alpmc »

I agree with Purplehood!

The laws governing your legal right to carry a firearm, with a valid CCL, are NOT applicable for an employee working for a business that does not allow firearms to be carried without authorization!! An employee handbook need not be worded in any manner as described under PC 30.06 in order to legally terminate the employment of an employee with a valid CCL!!!

We are talking about job termination and NOT the employees legal right to carry a firearm!

Lets say that a business owner, does NOT post a legal 30.06 notification for his/her business. This means anyone can carry in that business. The business owner does NOT allow his/her employees to carry firearms while on the clock regardless if the employee has a valid CCL and states this in his/her employee handbook. Even though the employee has a valid CCL and is carrying legally, in compliance withe PC AND the fact that the business does not post a 30.06.......he/she can still be terminated from employment without ANY legal recourse if he willingly carries a firearm against the employee policy of the employer!!
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Re: "Possession of Unauthorized Firearms"

#33

Post by sjfcontrol »

I agree with that -- it matches what I said earlier. (Substituting "CCL" with "CHL")

The laws do not deal with reasons you can be fired. Only with reasons you may be arrested/prosecuted. In order to arrest, the wording in the employee manual must meet 30.06 wording. Any other wording can be used, but then would only be effective as a reason to terminate, not arrest.

You can be terminated at any time, for any reason. Even reasons that are not specified in a manual.
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Re: "Possession of Unauthorized Firearms"

#34

Post by alpmc »

Sorry sjfcontrol if I misunderstood you!

Ok, I had breakfast with a ADA friend this morning and I was humbled by what I learned. Policy established by an employer is binding. If they have stated in their employee handbook a "no unauthorized firearm" policy, no matter how it's worded, then that employer can terminate your employment if they discover your CW......period. (more to come on this below)

As an employee you should approach your employer and ask permission to carry, during work hours, thus acquiring "authorization"! Get this in writing! This only protects you from your employer and termination. Bear in mind, if you approach your employer and you are not given permission.......they will be watching you very closely!

OK, here's the part that scares me in reference to the first paragraph and it's conditions............. after you have been discovered with a CW even and especially if you are a valid CCL holder, not only can you be terminated but you can be arrested for failure to conceal (PC 46.035 a) if your ex-employer reports you to law enforcement. Also, if your employer does not report you and you try to litigate for wrongful termination under the mentioned circumstances, my ADA friend said he would file charges against you and have you arrested for failure to conceal! (PC 46.035 a). The issue would now be a matter of whether or not your reveal was accidental or intentional. And that's a blurry line! (it gets more interesting if you employ your weapon in a dire situation under the above mentioned circumstances.)

I have nothing else to say on this matter except............ you, and only you can can decide if you want to risk your freedom and carry in any unauthorized situation as a civilian or an employee. Bottom line is do your homework if you do not know what your getting yourself into.........ignorance is not a defense!

What I gleaned from the underlying message in our conversation is, if your doing your job as a CCL holder then NOBODY should EVER know your carrying! So bdickens had the best advice...............

Strap it on, cover it up (really, really well), and shut up!!!!!!!!!!!!

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Re: "Possession of Unauthorized Firearms"

#35

Post by bdickens »

And do whatever it is you can afford.
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Re: "Possession of Unauthorized Firearms"

#36

Post by RPB »

alpmc wrote:Sorry sjfcontrol if I misunderstood you!

Ok, I had breakfast with a ADA friend this morning and I was humbled by what I learned. Policy established by an employer is binding. If they have stated in their employee handbook a "no unauthorized firearm" policy, no matter how it's worded, then that employer can terminate your employment if they discover your CW......period. (more to come on this below)

As an employee you should approach your employer and ask permission to carry, during work hours, thus acquiring "authorization"! Get this in writing! This only protects you from your employer and termination. Bear in mind, if you approach your employer and you are not given permission.......they will be watching you very closely!

OK, here's the part that scares me in reference to the first paragraph and it's conditions............. after you have been discovered with a CW even and especially if you are a valid CCL holder, not only can you be terminated but you can be arrested for failure to conceal (PC 46.035 a) if your ex-employer reports you to law enforcement. Also, if your employer does not report you and you try to litigate for wrongful termination under the mentioned circumstances, my ADA friend said he would file charges against you and have you arrested for failure to conceal! (PC 46.035 a). The issue would now be a matter of whether or not your reveal was accidental or intentional. And that's a blurry line! (it gets more interesting if you employ your weapon in a dire situation under the above mentioned circumstances.)

I have nothing else to say on this matter except............ you, and only you can can decide if you want to risk your freedom and carry in any unauthorized situation as a civilian or an employee. Bottom line is do your homework if you do not know what your getting yourself into.........ignorance is not a defense!

What I gleaned from the underlying message in our conversation is, if your doing your job as a CCL holder then NOBODY should EVER know your carrying! So bdickens had the best advice...............

Strap it on, cover it up (really, really well), and shut up!!!!!!!!!!!!
Sorry to disagree with your ADA freind ... but after 25 years working in a law office before I retired, my layman's opion is in disagreement.

Well, it would have to be an INTENTIONAL "failure to conceal" to meet all the elements of a crime under (PC 46.035 a).

(a) A license holder commits an offense if the license
holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code,
and intentionally fails to conceal the handgun.

(And, I can't see why you would intentionally REVEAL your weapon ... unless it was self-defense and JUSTIFIED/Necessity)

He'd be more successful trying to prosecute under 30.06 IF he verbally told you to leave and you refused.
If you left, then he would have a problem later tying to prosecute for an offense that didn't occur.
§ 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN.
(a) A license holder commits an offense if the license holder:
(1) carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder with a concealed handgun was forbidden; or
(B) remaining on the property with a concealed handgun was forbidden and failed to depart.


However, Texas is an "Employment at-will" state (not a right-to-work state etc) and generally, you could be fired for wearing the wrong socks, parting your hair wrong, or "for no reason at all" (Which is very common, so there is almost no way to sue for a 'wrongful termination unless you have proof of some sort of illegal discrimination based on Texas or Federal law) ... if there is "NO policy" ...then forgiveness is easier to get than permission, and if no law is broken, the worst that could occur is you get fired for being too happy, not sitting up straight, wearing the wrong cologne, or any other reason they want.... or no reason at all.

I'd recommend re-reading anything Keith wrote, and Keith's reply to chartreuse, among others....I ain't a lawyer.
Last edited by RPB on Tue May 25, 2010 11:57 am, edited 1 time in total.
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sjfcontrol
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Re: "Possession of Unauthorized Firearms"

#37

Post by sjfcontrol »

In any case, I doubt that they could successfully prosecute you for "failure to conceal", if the discovery was subsequent to a "search" of your person, because they suspected you might be carrying due to your previous inquiries.
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Re: "Possession of Unauthorized Firearms"

#38

Post by RPB »

Employers may have rights to search employees property under certain circumstances, but I'd not consent to a bodily/strip search by an employer any more than by a WalMart greeter.

If I was terminated due to refusing to be BODILY searched, expect litigation against that company. (Couldn't tell you if cities enjoy soverign immunity, but I'd expect the 4th amendment to the Constitution covers governmental entities)

Without pulling up case law etc ...
When you go to work for any company you have a responsibility to serve the employer in the best interests of the workplace and as such, surrender certain rights to those for whom you work. Many employers post notices regarding their right to monitor phone calls, check computers and search lockers, desks and even bags and briefcases when employees leave the workplace. Employers, however, must respect certain employee rights when it comes to a physical search of any employee.
http://www.ehow.com/about_5426620_emplo ... rches.html" onclick="window.open(this.href);return false;

...
The Fourth Amendment of the U.S. Constitution was designed to insure citizens do not have their personal property, space or body searched without probable cause. Probable cause must be established by a judge leading to a court order in the form of a warrant. The warrant will clearly state what is being sought and what will be searched. If you work for the government in a civil service position your Fourth Amendment rights are respected to the letter of the law
Last edited by RPB on Tue May 25, 2010 12:11 pm, edited 1 time in total.
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Re: "Possession of Unauthorized Firearms"

#39

Post by G26ster »

RPB wrote:
He'd be more successful trying to prosecute under 30.06 IF he verbally told you to leave and you refused.
If you left, then he would have a problem later tying to prosecute for an offense that didn't occur.
§ 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN.
(a) A license holder commits an offense if the license holder:
(1) carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder with a concealed handgun was forbidden; or
(B) remaining on the property with a concealed handgun was forbidden and failed to depart.

You seem to be changing the "or" in § 30.06(a)(2)(A) to an "and". You can be prosecuted whether or not you refuse to leave. Simply receiving notice that the handgun was forbidden is enough according to the statute.

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Re: "Possession of Unauthorized Firearms"

#40

Post by 3dfxMM »

In that example, how was entry forbidden? If it didn't meet the standards for effective notice, then only the second part would apply.

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Re: "Possession of Unauthorized Firearms"

#41

Post by RPB »

G26ster wrote:
RPB wrote:
He'd be more successful trying to prosecute under 30.06 IF he verbally told you to leave and you refused.
If you left, then he would have a problem later tying to prosecute for an offense that didn't occur.
§ 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN.
(a) A license holder commits an offense if the license holder:
(1) carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder with a concealed handgun was forbidden; or
(B) remaining on the property with a concealed handgun was forbidden and failed to depart.

You seem to be changing the "or" in § 30.06(a)(2)(A) to an "and". You can be prosecuted whether or not you refuse to leave. Simply receiving notice that the handgun was forbidden is enough according to the statute.
No, the statement "Simply receiving notice that the handgun was forbidden is enough according to the statute" is incorrect because ... it is an OR

if
A) you are given notice that LICENSE HOLDERS may not enter carrying a gun on the property
(not notice that guns are forbidden on the property)
or
b) you are told to leave AND refuse to leave and remain

If you meet the condiions in A) OR the conditions in B) You have committed an offense.

BUT


The language "no unauthorized firearms allowed"
a) does not state "LICENSE HOLDERS" may not enter ...
and
b) No one told him/gave notice to leave


All the elements must be present for an offense to occur.
No criminal offense exists with a "no unauthorized firearms allowed" language any more than a gunbuster sign.
Neither say A) LICENSE HOLDERS may not enter with a gun.
Neither B) give notice that anyone needs to leave. (if it did, I wouldn't fail to depart and remain on the property)
----------

"Possession of unauthorized firearms or lethal weapons on the job."
I'd concentrate on the "or lethal weapons" and buy some of them rubber bullets or get a taser, not for legal reasons ... but if I wanted to keep from getting fired :mrgreen:
However, this sign appears to communicate that Berettas and some Taurus models are "not authorized firearms" even with rubber bullets. ;-)
BUT it still doesn't say that "LICENSE HOLDERS" .....
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Last edited by RPB on Wed May 26, 2010 7:32 am, edited 1 time in total.
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Re: "Possession of Unauthorized Firearms"

#42

Post by boomerang »

G26ster wrote:You seem to be changing the "or" in § 30.06(a)(2)(A) to an "and". You can be prosecuted whether or not you refuse to leave. Simply receiving notice that the handgun was forbidden is enough according to the statute.
Yes, if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral communication, or by written communication that meets certain requirements, before the person enters the property.

If the person receives "notice" after entry, and they depart after receiving notice, I don't think they commit an offense.

In practice, if they're gone before the police arrive, successful prosecution seems unlikely. Of course, in practice, concealed means concealed.
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Re: "Possession of Unauthorized Firearms"

#43

Post by G26ster »

boomerang wrote:
G26ster wrote:You seem to be changing the "or" in § 30.06(a)(2)(A) to an "and". You can be prosecuted whether or not you refuse to leave. Simply receiving notice that the handgun was forbidden is enough according to the statute.
Yes, if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral communication, or by written communication that meets certain requirements, before the person enters the property.

If the person receives "notice" after entry, and they depart after receiving notice, I don't think they commit an offense.

In practice, if they're gone before the police arrive, successful prosecution seems unlikely. Of course, in practice, concealed means concealed.
OK, I was under the impression in the example given, that the person received oral notice BEFORE he entered, and that RPB was saying you could only be prosecuted IF you entered and refused to leave. My misunderstanding.

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Re: "Possession of Unauthorized Firearms"

#44

Post by RPB »

He hasn't had written notice yet, he won't get oral notice until they reply to a request for authorization (if he requests authorization) .... then after he gets the oral notice "NO!!!" .... then it would be a criminal offense too if he carried anyway.
Until he gets notice, he could be terminated, but no crime occurred ... but after getting notice and carrying anyway, would be criminal offense as well as termination.

Tough decision, ask and risk rejection, or "don't ask don't tell" so that if you intend to carry anyway, it isn't criminal ...
Tougher yet when the city employee handbook doesn't say authorization from whom? Immediate Supervisor, or the Mayor?

I'd just carry a Taser, pepper spray, rubber bullets maybe, a beanbag gun, paintballs filled with an irritant? and other non-lethal weapons though. Then no policy was violated, and no crime committed either.
Maybe a 5-inch-blade orange peeling knife too, it's not a weapon, but an orange peeler/fingernail cleaner etc etc etc. :confused5

I still recall the faces of the Campus Police Officers many many years ago when I'd whip out my 5-1/4" inch blade to open boxes back when I worked at the College Campus bookstore ... I didn't carry any weapons at all there though, just my 5-1/4" inch bladed box opener and some spices in case the food needed more pepper ... :biggrinjester:
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