Carrying past an 06/07 sign - which way does the LEO go?

[Ruark]

Scenario:

A business owner has an invalid 06/07 sign posted. The letters are half an inch tall, the Spanish part is missing, whatever. One issue I see frequently is people printing it out on a sheet of typing paper.

Since the sign's invalid, you carry in because you have a serious need to enter this particular business. In some way, the business owner sees you carrying and calls the police. The police arrive and start talking to you. You point out how the sign is invalid.

Which of the following would happen?

1. The officer would tell the business owner, "I'm sorry sir, but he has not broken any law; your sign is not valid."

2. The officer would arrest you anyway, telling you something to the effect of "that's between you and the judge."

I know some people on this forum have talked about LEOs as guest speakers in CHL classes saying it would absolutely be #2. Other than that, I've heard no mention of how the above situation would be handled. It's hard to believe there are NO instances of it occurring so far.... are there?

Open for comments....

[ScottDLS]

Possibility #3 after 1/1/16...cop gives you a class C summons and you get to sort it out with the Justice of the Peace or pay the $200 fine.

[Ruark]

Possibility #3 after 1/1/16...cop gives you a class C summons and you get to sort it out with the Justice of the Peace or pay the $200 fine.

So a Class C isn't an arrest offense? Or it's up to the officer? At least that wouldn't cost me anything, I'd just take a picture of the sign to the judge. That could be a "#3" on the list.

[Abraham]

Ruark,

You'll not find any standard answers.

Officers are just as ignorant about this as many others in this arena.

Good Luck!

We often hear, "ignorance of the law is no excuse" but it doesn't apply to LE0's....

[ScottDLS]

Possibility #3 after 1/1/16...cop gives you a class C summons and you get to sort it out with the Justice of the Peace or pay the $200 fine.

So a Class C isn't an arrest offense? Or it's up to the officer? At least that wouldn't cost me anything, I'd just take a picture of the sign to the judge. That could be a "#3" on the list.

Class C doesn't have jail as a possible penalty, so normally you just get a summons...but alas, you can get arrested for any class C except seat belt violation and open container.

EDIT to CORRECT.... speeding & open container (as pointed out by SA-TX)

[Middle Age Russ]

The situation need not end up with an LEO being called to the scene at all. Say the business owner sees the gun...

(Business Owner) I see you are carrying a gun. Did you not see my sign?
(Patron) Yes, but it really isn't valid since it does not meet the specific criteria called for.
(Business Owner) In that case, please consider this verbal notice that you cannot carry here.
(Patron) Thank you for making your stance clear. I'll leave now and not darken your doorstep again.

[AJSully421]

In that exact scenario, they can't write a ticket, the law is not satisfied by the improper sign. They would ask the business owner if he would like for you to leave, then you leave. Problem solved, problem staying solved.

I am friends with a couple of cops, and it seems to me that neither one of them are interested in arresting people for bull things so long as they are being cooperative and respectful.

In this example, if you were telling the officer that the sign is invalid, but if the business owner does not want you here, then you say that you would like to go ahead and leave now... he will let you leave. The officer is not going to arrest you, it is not worth his time and the hassle; especially knowing it is going to get tossed because the sign is improper.

If you are standing there refusing to leave the store and going on and on about your rights, you will not get a very kind response i'm afraid.

[Glockster]

I assume that absent a correct sign, perhaps the sign that was there wasn't actually seen. I don't say this as a game playing tactic, but in the two years that I've lived in Texas I've gotten to the point where I automatically look for the proper sign. They will be of a certain sign, because of the specific requirements. There is often (usually) so much junk posted by store entrances that I don't really pay attention to it. So I envision that the guy calls the police, police arrive and ask you what you're doing and you say, what? Police explains, you politely say huh, what sign? Then you all stand there at the door while you politely explain to the police how you are immediately leaving, but that it would have been better for the shop owner to not waste the nice police officer's time by failing to comply with the law in posting a legal sign. Then let them discuss that.

[LSUTiger]

I am not encouraging anyone to break the law, but using common sense as a hypothetical, because that's all it seems to be these days, I would be more worried about losing my job than getting a $200 class C misdemeanor ticket (after Jan. 1 2016), and more worried about losing my life than losing my job. So getting a $200 ticket is not a big deal to me.

Additionally, concealed is concealed.

So unless I am misinterpreting if you are not carrying an illegal weapon and not committing a crime other than a class c misdemeanor 9.22 NECESSITY might negate 30.06/7 if you would be justified in defending your self????


Some one please educate me.

http://www.statutes.legis.state.tx.us/S ... m/PE.9.htm

Sec. 9.22. NECESSITY. Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.


Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER C. PROTECTION OF PERSONS




Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other's use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.


Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 190, Sec. 1, eff. Sept. 1, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1 (S.B. 378), Sec. 2, eff. September 1, 2007.



Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person's own premises or premises under the person's control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.


Text of subsection effective until January 01, 2016


(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.


Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

(1) any of the following items, unless the item is registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives or classified as a curio or relic by the United States Department of Justice:

(A) an explosive weapon;

(B) a machine gun;

(C) a short-barrel firearm; or

(D) a firearm silencer;

(2) knuckles;

(3) armor-piercing ammunition;

(4) a chemical dispensing device;

(5) a zip gun; or

(6) a tire deflation device.

(b) It is a defense to prosecution under this section that the actor's conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.

(c) Repealed by Acts 2015, 84th Leg., R.S., Ch. 69 , Sec. 2, eff. September 1, 2015.

(d) It is an affirmative defense to prosecution under this section that the actor's conduct:

(1) was incidental to dealing with a short-barrel firearm or tire deflation device solely as an antique or curio;

(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b); or

(3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an organization, agency, or institution listed in Subsection (b).

(e) An offense under Subsection (a)(1), (3), (4), or (5) is a felony of the third degree. An offense under Subsection (a)(6) is a state jail felony. An offense under Subsection (a)(2) is a Class A misdemeanor.

(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:

(1) provided by the Texas Commission on Law Enforcement; or

(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.

(g) In Subsection (f), "security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.


Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 918, ch. 342, Sec. 15, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 2650, ch. 457, Sec. 2, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4831, ch. 852, Sec. 2, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(47), eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 229, Sec. 2, eff. Sept. 1, 1991; Renumbered from Penal Code Sec. 46.06 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1071, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 1035 (H.B. 1132), Sec. 2.01, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 1278 (H.B. 2303), Sec. 7, eff. September 1, 2005.

Acts 2011, 82nd Leg., R.S., Ch. 920 (S.B. 1416), Sec. 2, eff. September 1, 2011.

Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.60, eff. May 18, 2013.

Acts 2013, 83rd Leg., R.S., Ch. 960 (H.B. 1862), Sec. 1, eff. September 1, 2013.

Acts 2015, 84th Leg., R.S., Ch. 69 (S.B. 473), Sec. 1, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 69 (S.B. 473), Sec. 2, eff. September 1, 2015.

[SA-TX]

Possibility #3 after 1/1/16...cop gives you a class C summons and you get to sort it out with the Justice of the Peace or pay the $200 fine.

So a Class C isn't an arrest offense? Or it's up to the officer? At least that wouldn't cost me anything, I'd just take a picture of the sign to the judge. That could be a "#3" on the list.

Class C doesn't have jail as a possible penalty, so normally you just get a summons...but alas, you can get arrested for any class C except seat belt violation and open container.

IIRC, it is speeding, not a seat belt violation, for which you cannot be arrested. I say this because there was a U.S. Supreme Court case a few years ago from Texas (Lago Vista, maybe?) where a mom was arrested for not wearing her seat belt while slow rolling and dealing with a child. She argued, among other things, that Texas law that allowed her arrest for this was unconstitutional. She lost. That said, the Legislature may have changed the law.

SA-TX

[ScottDLS]

Right...speeding....

[srothstein]

I say this because there was a U.S. Supreme Court case a few years ago from Texas (Lago Vista, maybe?) where a mom was arrested for not wearing her seat belt while slow rolling and dealing with a child. She argued, among other things, that Texas law that allowed her arrest for this was unconstitutional. She lost.

Atwater v. Lago Vista. One factor contributing to her loss was that she paid the ticket and then filed a civil suit for wrongful arrest. Her claim was that she should not have been booked into jail since the offense was not punishable by jail. SCOTUS said too bad.

[o b juan]

what we have here is a failure in communication ... and a lot of what we called in the Military " Latrine Lawyers"

when in doubt ask Charles or AG of Texas

[SA-TX]

I say this because there was a U.S. Supreme Court case a few years ago from Texas (Lago Vista, maybe?) where a mom was arrested for not wearing her seat belt while slow rolling and dealing with a child. She argued, among other things, that Texas law that allowed her arrest for this was unconstitutional. She lost.

Atwater v. Lago Vista. One factor contributing to her loss was that she paid the ticket and then filed a civil suit for wrongful arrest. Her claim was that she should not have been booked into jail since the offense was not punishable by jail. SCOTUS said too bad.

Thank you Steve, as always.