411.171 question

[thetexan]

Reference the definition of concealed handgun in paragraph (3)...

First let's look at what it DOESN'T say...

...means a handgun, the presense of which is not discernible...

Now, what it actually says...

...means a handgun, the presense of which is not OPENLY discernible...

Why the adverb 'openly'. What does that mean? I know I will get lots of opinions and interpretations. Please give any citations, case law, references or other that will substatiate your opinion.

thanks,
tex

[K.Mooneyham]

Texas Penal Code 411.171
(3) "Concealed handgun" means a handgun, the presence of which is not openly discernible to the ordinary observation of a reasonable person.

The important thing is to NOT parse this down into little bites, but to take the whole thing. IANAL, but to me it means a regular person being able to simply look at someone who is carrying and know it. Not someone who's had some sort of special training, and not using some extraordinary means to spot the handgun, either.

[Keith B]

You only have to look at the dictionary to find a term that fits. http://dictionary.reference.com/browse/ ... s=t&path=/" onclick="window.open(this.href);return false; definition 19 says:

19. exposed to general view or knowledge; existing, carried on, etc., without concealment: open disregard of the rules.

Openly means it is visible or discernable to the general viewer without having to specifically hunt for it. So, if you have to go search for it, then it is not OPENLY discernable.

[thetexan]

I thought that also, initially, and it may be true.

I work in the aviation industry as an instructor pilot and air traffic control instructor and my job requires me to be an expert on several parts of Federal Aviation Regulations. Having been involved in many cases where legal action was taken concerning some aspect of air traffic or flying such as accidents I can speak to the subject with some experience. Although I am not a lawyer I am knowledgeble on the complexities of written law and how one must know the meaning of every word written. You can be sure each and every word of one's mortgage contract means something important.

When it goes to trial the lawyer will precisely parse each and every word of the law that they are using to make their case. I have seen grown, tough men brought to both tears and near physical altercation by the very act of a lawyer doggedly, relentlessly picking apart words. So, yes, it is wise to parse to whatever degree was intended and necessary to get to the original meaning.

The legislators who wrote that rule added the word 'openly' for some reason.

I initially thought that an explanation could be that it means normally seeable without having to hunt for it. But then we can see that the term 'ordinary observation' probably deals with that. I also know what the dictionary meaning of discernment is. The question is whether or not it has that meaning legally. So the question is why the necessity to add the adverb 'openly' to the already understandable (presumably) term of discernment. How does that change the legal meaning.

My interest is asking that is to find out if anyone is aware of the legal reason. Many times urban myths get started by promulgating opinions after opinions. Much like the kids game Telephone.

For example...

It could modify the meaning of discernment by requiring that the target point of interest, the location on the person where the discerning is taking place must be in the open. ie not obstructed by the arm or backpack or stack of books being carried under the arm, etc.

It might modify the meaning of discernment by requiring that the thing being discerned is in the open. In other words, part of the gun must be visible (open) to the discernment of the observer, under ordinary observation. I take 'ordinary observation' to mean observable with no extradinary effort to counter any osbstructions or hinderances to observation.

In any case the word 'openly' almost certainly has a legal modifying effect on the word discernment and I want to understand what that is. I acknowledge that it may not substantially legally modify the term discerment. But I would like to know if anyone knows of any previous supporting documentation or legal opinion or past case precedent that supports the definition.

For example, what is actually being taught by the DPS in instructor classes? etc

tex

[Keith B]

I thought that also, initially, and it may be true.

For example, what is actually being taught by the DPS in instructor classes? etc

tex

They do not teach you to interpret the law, they teach you the intent of the statute as they see it.

That is the piece that must be determined, what was the 'intent' of the statute when it was passed. Lawyers will try to paraphrase, parse, chop, etc anything they can to work the law to their client's favor. It is part of their job. FAA lawyers will do the same. It is up to the Judge/Jury or the AG to make a call on what the law really says.

Bottom line, without case law or an AG opinion you have nothing other than to take the whole law at it's face value. Trying to break it down in this case is not going to buy you anything.

And, I am a commercial pilot and instructor as well. I have long ago figured out that every person at the FAA will interpret something differently, depending on who you ask. Go to your local FSDO and ask three inspectors a question about an FAR and you will more than likely get 3 different answers.

[thetexan]

I thought that also, initially, and it may be true.

For example, what is actually being taught by the DPS in instructor classes? etc

tex

They do not teach you to interpret the law, they teach you the intent of the statute as they see it.

That is the piece that must be determined, what was the 'intent' of the statute when it was passed. Lawyers will try to paraphrase, parse, chop, etc anything they can to work the law to their client's favor. It is part of their job. FAA lawyers will do the same. It is up to the Judge/Jury or the AG to make a call on what the law really says.

Bottom line, without case law or an AG opinion you have nothing other than to take the whole law at it's face value. Trying to break it down in this case is not going to buy you anything.

And, I am a commercial pilot and instructor as well. I have long ago figured out that every person at the FAA will interpret something differently, depending on who you ask. Go to your local FSDO and ask three inspectors a question about an FAR and you will more than likely get 3 different answers.

...and, in fact, many times laws and regs are deliberately written with ambiguity inserted expressly for the purpose to leave it interpretable in the future. I understand that.

Without any supporting previous case arguments on this subject it would be hard to nail it down, undoubtedly. So, then, again, what is the current and accepted intent of that part of the phrase as taught by the DPS?

tex

[Keith B]

I thought that also, initially, and it may be true.

For example, what is actually being taught by the DPS in instructor classes? etc

tex

They do not teach you to interpret the law, they teach you the intent of the statute as they see it.

That is the piece that must be determined, what was the 'intent' of the statute when it was passed. Lawyers will try to paraphrase, parse, chop, etc anything they can to work the law to their client's favor. It is part of their job. FAA lawyers will do the same. It is up to the Judge/Jury or the AG to make a call on what the law really says.

Bottom line, without case law or an AG opinion you have nothing other than to take the whole law at it's face value. Trying to break it down in this case is not going to buy you anything.

And, I am a commercial pilot and instructor as well. I have long ago figured out that every person at the FAA will interpret something differently, depending on who you ask. Go to your local FSDO and ask three inspectors a question about an FAR and you will more than likely get 3 different answers.

...and, in fact, many times laws and regs are deliberately written with ambiguity inserted expressly for the purpose to leave it interpretable in the future. I understand that.

Without any supporting previous case arguments on this subject it would be hard to nail it down, undoubtedly. So, then, again, what is the current and accepted intent of that part of the phrase as taught by the DPS?

tex

...the presence of which is not openly discernible.... That is what is taught. It is not hard line defined in class because it is open to interpretation.

The general consensus among members here and CHL Instructors in the know is that if you have to ask yourself 'Is that a gun or something else' then it is not openly discernible. If it is clear to a person who normally wouldn't be looking to see if someone is armed (i.e not a LEO) that it is a gun, then it is not properly concealed. An example our main instructor uses is 'If you can see the word GLOCK showing through your t-shirt, then it is definitely not concealed.

[Keith B]

Want to add something else. As a CFI, what do you teach your students about FAR 91.119? What is a congested area? What is an other than congested areas? What is: '(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface'?

These are NOT defined by the FARs and you will not get the same answer from any FAA Inspector you ask. There are just some things that are gray in the laws and totally open to interpretation.

[Jumping Frog]

Well, this old boy just keeps it simple: concealed means concealed.

If no one ever notices my gun, then I don't have have to parse the definition of "is".

People (including many people inaw enforcement) are amazingly inobservant.

[sunny beach]

Well, this old boy just keeps it simple: concealed means concealed.

If no one ever notices my gun, then I don't have have to parse the definition of "is".

Amen, brother.

[jimlongley]

I thought that also, initially, and it may be true.

For example, what is actually being taught by the DPS in instructor classes? etc

tex

They do not teach you to interpret the law, they teach you the intent of the statute as they see it.

That is the piece that must be determined, what was the 'intent' of the statute when it was passed. Lawyers will try to paraphrase, parse, chop, etc anything they can to work the law to their client's favor. It is part of their job. FAA lawyers will do the same. It is up to the Judge/Jury or the AG to make a call on what the law really says.

Bottom line, without case law or an AG opinion you have nothing other than to take the whole law at it's face value. Trying to break it down in this case is not going to buy you anything.

And, I am a commercial pilot and instructor as well. I have long ago figured out that every person at the FAA will interpret something differently, depending on who you ask. Go to your local FSDO and ask three inspectors a question about an FAR and you will more than likely get 3 different answers.

Just try dealing with the FCC. As a Transmission Engineer for NY Telephone I was the nominal "licensee" for NY Tel's radio systems (upstate) several years, I had to respond to FCC inquiries and pink slips and their parsing and re-interpretation of the language of the black letter law was nothing short of amazing.