30.05, Defense to prosecution vs. "does not apply"

[barres]

We could still be arrested and have to use a defense to prosecution in a court of law. For a police officer, the law simply does not apply, so no arrest could be made.

[Charles L. Cotton]

Russell:
I'm not sure I understand your question, but I'll give it a try. Technically, there is no difference between a "defense to prosecution" and a "does not apply" provision. Most prosecutors will treat a "does not apply" provision like they would an "exception," but there is case law that holds the only exceptions are those expressly stated to be "exceptions." An exception means you cannot or should not be arrested. A defense to prosecution means you can lawfully be arrested and you will have to assert the defense in court.

With this background, the difference between a LEO ignoring a no trespassing sign posted pursuant to TPC §30.05 and a CHL ignoring a sign that does not comply with TPC §30.06 is that the LEO technically can be arrested and he/she would have to prove his defense in court. Realistically, this isn't going to happen. A CHL would not violating any law by ignoring a non-compliant sign, assuming he/she didn't have verbal notice.

Chas.

[AJSully421]

I think Barres and Captain Cotton have it right... "does not apply" means no law is broken... defense to prosecution means a law was broken, but it can be execused in the justice system if these conditions occur. basically, defense to prosecution will get you prosecuted but you have a defense that might stop a conviction, but it gets you the ride... and you know what they say...you can beat the rap... but you can't beat the ride.

[Charles L. Cotton]

I think Barres and Captain Cotton have it right... "does not apply" means no law is broken... defense to prosecution means a law was broken, but it can be execused in the justice system if these conditions occur. basically, defense to prosecution will get you prosecuted but you have a defense that might stop a conviction, but it gets you the ride... and you know what they say...you can beat the rap... but you can't beat the ride.

Sorry, but this is not what I'm saying. "Defense to prosecution" and "does not apply" are the same thing and you can be arrested. You will have to prove your "defense" at trial. As a practical matter, most prosecutors will treat "does not apply" like they do exceptions, but they are not required to do so.

A CHL crossing a non-compliant sign is not breaking the law and a LEO cannot make a good faith arrest for an act that is not against the law.

Chas.

[KBCraig]

"Defense to prosecution" and "does not apply" are the same thing and you can be arrested. You will have to prove your "defense" at trial. As a practical matter, most prosecutors will treat "does not apply" like they do exceptions, but they are not required to do so.

Wow. I would have thought that when the law itself states it does not apply, then that is an exception.

What curious twists the language takes, when subjected to people in black robes.

[Charles L. Cotton]

"Defense to prosecution" and "does not apply" are the same thing and you can be arrested. You will have to prove your "defense" at trial. As a practical matter, most prosecutors will treat "does not apply" like they do exceptions, but they are not required to do so.

Wow. I would have thought that when the law itself states it does not apply, then that is an exception.

Me too! And here's a bit of trivia , as it was related to me. I was not personally involved. The DA's association fought like tigers to keep what is now the TPC §46.15 "not applicable" provisions (formerly defenses to prosecution) from being turned into exceptions. They claimed it would make their pleading burden much harder. To show their good faith, they compromised and came up with the "not applicable" language ostensibly so their pleading burden wouldn't be made worse and "we" could avoid being arresting and having to prove a defense. After this language was adopted, our "friends" then took a case on appeal and got a ruling that anything that didn't say "exception" was a defense to prosecution. So much for good faith working with the DA's association.

This is purely my speculation, but I suspect many DAs don't like the way this was handled and that is why most DAs treat "not applicable" as "exceptions."

Chas.

[T3hK1w1]

That makes *no* sense that "does not apply" can still get you arrested.

When did common sense enter into the equation?

[lrb111]

I think i need a flowchart on this one.

[AJSully421]

so... "does not apply" to a LEO as you have stated means that if an on duty police officer is on my property and i tell him to leave my property and he does not, i can press charges and have another police officer arrest the first cop for CT, he will go to jail, be charged with a class B Mis. and have to "tell it to the judge"?... sorry, that sounds wrong.

[srothstein]

so... "does not apply" to a LEO as you have stated means that if an on duty police officer is on my property and i tell him to leave my property and he does not, i can press charges and have another police officer arrest the first cop for CT, he will go to jail, be charged with a class B Mis. and have to "tell it to the judge"?... sorry, that sounds wrong.

Well, to be honest it would depend on what the cop was doing on the property and why, but there is a Court of Criminal Appeals case in the 90's (IIRC) that says that you are basically correct in your statement. If there is a cop on your property, either on duty or off, you have the legal right to tell him to leave and he is violating the law if he does not.

As one example, when one restaurant in San Antonio first opened, they had a policy of not allowing police officers in uniforms in the restaurant. This was not because of the firearms, but the manager thought that seeing cops in uniform would scare the customers and make them think the area was not safe (and it truly wasn't). When they called the police about something, they always had the manager waiting outside and would decline entry to the officers unless it was an ongoing disturbance or something. They also would refuse to seat officers who came in to eat on duty. If an officer tried to enter against their wishes in either case, it would be criminal trespass.

[dac1842]

I dont use all the legal mumbo jumbo. The difference is this. As a CHL holder we have limitations on where we can carry. A police officer has no such limitations, he can carry anywhere anytime.
I operate under the presumption that if the sign is posted, compliant or not, i either honor it or I dont shop there. I know many disagree with what I am about to say but I will go there anyway. I feel one day there will be case of a CHL holder arrested. The signage wont be in compliance but the judge will say in the end that the intent of the owner was to prohibit the carrying of handguns and his right to prohibit on his property supercedes your right to carry, the sign, regardless of compliant with the law or not, stated the owners intent. I dont have the desire nor the money to be the test case. Unless of course one of the fine outstanding lawyers on this board wants to state publicly in writing that he will represent me pro bono!
If I do encounter a no carry sign of any type I hand them a 5x7 card that states:
Dear Business Owner or Manager,
I see that you have exercised your right to ban the possession of firearms on your property. In exercising your rights you have infringed on mine.
I am a Concealed Handgun License Holder. I have passed stringent State and Federal background checks in order to carry a concealed weapon. You can rest easy knowing that I am not a criminal or wanted, do you know that much about your other customers?
I will of course do for you what you have not done for me, I will respect your right to ban firearms on your property. In doing so I will not patronize your business and will exercise my right of free speech to notify 300,000 other CHL holders, 50% of which reside within 100 miles of your business of your policy.
CHL Holders have a common motto “NO GUNS=NO $$$�

[bdickens]

After much internal debate, I have decided that I am going to institute the following personal policy:

Compliant signs I am of course going to obey. I am going to carry right past signs that are obviously non-compliant (gunbusters, "no weapons allowed, etc)". The near-compliant signs I am going to take on a case-by case basis.

Here's why:

Compliant signs are obvious. I obey the law.

The obviously non-compliant sign does not apply to me. It clearly does not meet the requirements of the law and therefore does not constitute proper notice. Now, I know what you're going to say: "forget them! I'm not going to give my hard-earned money to anti-gun bigots." Is the business bigoted against gun owners? How do you know? The sign? Not necessarily. Most business owners and managers are sheeple like everybody else. They are not informed on the issue and haven't given five seconds worth of thought to the Second Amendment or RKBA. All they know about guns is the propaganda they are spoon-fed by the mass media. They are probably either supplied their "no guns" signs by their corporate masters or they were looking around the office supply and picked them up along with the "no soliciting" and "no food and drinks" signs. And put the "no guns" signs up with just as much thought as the others.

All I want to do right now is get a pair of shoes or something. Now is not the time to educate the store owner on RKBA. Nor do I have the energy to devote to ferreting out every possible source of anti-gun bigotry in the Houston area. If the business is truly prejudiced against me, then they can just expend a little effort to do the research so they can give me the proper notice. There is no secret about what the requirements are. If they really cared that much, they'd put up the proper sign.

The near-compliant signs are a possible sticky point. On one hand, the law is the law and the requirements are right there in black and white. Block letters. Contrasting colors. One inch high. Etc. On the other hand, I'm not going to go around with a ruler and say to myself "well, the letters ore only 15/16" high, I'm going through" That's not the hill I'm willing to die on.

The typewritten sheet that has the correct wording on it I'll blow by if its somewhere I want or need to be. Otherwise, I'll take my money somewhere else and probably let them know about it, too. Taco Cabana and their ilk are a special case. Even though they have an obviously non-compliant sign with 1/2" letters, their position has been made well-known so I'm going to respect their wishes and take my legally owned and legally carried defensive sidearm, and my money, elsewhere. And, I'm going to write them about it too.