| Author | Post |
|---|
cbackous
Regular Member
|
Posted: Wed Oct 7th, 2009 10:53 am |
|
some states say that a loaded magazine is a critical component of the firearm, for purposes of concealment. Is this the case in Texas?
The reason I bring this up is one could have an OWB magazine pouch/holster with loaded magazines, and conceal carry the handgun. While this isnt the type of open carry that we want, it would allow you to show you are carrying, without showing it.
thoughts?
|
Gator5713
Lone Star Veteran
|
Posted: Wed Oct 7th, 2009 06:14 pm |
|
I agree, and have been searching for an answer to this exact question! So far I have not found anything prohibiting this practice here in Texas, however, I have also not tried it yet, and I am not a lawyer...
If anybody has any decent reference or personal experience with this matter I would much like to hear it!
|
DocNTexas
Regular Member
| Joined: | Wed Nov 7th, 2007 |
| Location: | Texas USA |
| Posts: | 204 |
| Status: |
Offline
|
|
Posted: Wed Oct 7th, 2009 10:18 pm |
|
cbackous wrote: some states say that a loaded magazine is a critical component of the firearm, for purposes of concealment. Is this the case in Texas?
The reason I bring this up is one could have an OWB magazine pouch/holster with loaded magazines, and conceal carry the handgun. While this isnt the type of open carry that we want, it would allow you to show you are carrying, without showing it.
thoughts?
cbackous,
Texas law does not define handguns in that manner. Referring to Texas Penal Code Sec. 46.01. DEFINITIONS:
(3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
and:
(5) "Handgun" means any firearm that is designed, made, or adapted to be fired with one hand.
Now, the sections of law making open carry illegal are PC46.02 and 46.03 (I will not post then here due to length, but you can read them here http://www.statutes.legis.state.tx.us/ ) both of which merely refer to carrying a handgun as defined above. Therefore, it does not matter under these statutes if the handgun is loaded or not.
Now, Texas law is sort of strange in that it gives a direct and comprehensive violation under PC46.02 and 46.03 that include everyone, then it defines where these statutes are NOT applicable under a different subsection, PC46.15, which provides exemption for law enforcement officers, security officers, military personnel, those participating in hunting/sporting events, and so on, but there is no provision for unloaded handguns/firearms here either.
So, if you were openly carrying a handgun, whether loaded or unloaded in Texas, it is illegal under these statutes. I feel this is especially true if you were carrying an unloaded handgun and had the means to load it at the ready, as I am sure you the officer would consider it the same as carrying a loaded handgun and the charge would most likely be upheld by the courts. I feel that even if one was caught with an unloaded firearm and no ammo on them that they could still be charged under these laws (and most likely would be) as they are written although they might opt for the charge of Disorderly Conduct in such a case.
If you have a CHL and carry openly with ammo at the ready I feel they would consider it a loaded handgun and file on you for failure to conceal under 46.035 and it would likely be upheld by the courts as well.
The only way you might get away with open carry in Texas is to carry a pre-1899 handgun, which under Texas law is not considered a firearm by definition, thus, by law should not be considered illegal. However, most LEO are not that knowledgeable to the laws and I feel would file charges anyway and you would have to defend it in court. And there is still that Disorderly Conduct charge to fall back on which could be a bit harder to defend.
Now, the charge of Disorderly Conduct requires the action to be done with the intent to cause alarm, otherwise it is not a violation under this statute, therefore, it is somewhat situation dependant. I know several local authorities that have encountered people passing through town on foot while carrying loaded rifles and shotguns slung over their shoulders and have allowed them to continue because they were not carrying them or acting in a threatening manner and simple open carry of these weapons is not illegal whether loaded or not. As for carrying them around town, I feel many officers would push the issue, however, two recent appeal courts have ruled that the mere presence of the weapon does not constitute a threat just because someone perceives it as such. Both courts ruled that a true threat by word or action must exist in order to be a violation and that the mere presence of the weapon and perception of a threat by a third party is not sufficient. So, I feel it is defensible but may actually require you to defend it. In other words, how important is it to you?
So, there you have my opinion on the subject.
Doc
Last edited on Wed Oct 7th, 2009 10:29 pm by DocNTexas
|
Decoligny
Regular Member
|
Posted: Wed Oct 7th, 2009 10:36 pm |
|
cbackous wrote: some states say that a loaded magazine is a critical component of the firearm, for purposes of concealment. Is this the case in Texas?
The reason I bring this up is one could have an OWB magazine pouch/holster with loaded magazines, and conceal carry the handgun. While this isnt the type of open carry that we want, it would allow you to show you are carrying, without showing it.
thoughts?
California is the only State stupid enough to consider this.
It is actually only a problem when the gun is exposed and the magazine is concealed. And it doesn't come into play unless you don't have a CCW.
So, If you have your unloaded gun legally on the front seat of the car, and have a full magazine in your pocket, you will be considered as having a concealed firearm.
Having a legally concealed firearm and exposed full magazines doesn't seem to be an issue.
|
Gator5713
Lone Star Veteran
|
Posted: Thu Oct 8th, 2009 03:10 pm |
|
Doc,
While that is very good information, and a very good summary of the law in this state regarding the carrying of a handgun, it did not in any way address the question at hand!
Deco:
Thanks for the clarification about how CALIFORNIA might look at this, however it is not pertinent here in Texas, if for no other reason than the fact that in order to carry a handgun in your vehicle, it MUST be concealed!
But thank you both for the information provided. 
|
Gator5713
Lone Star Veteran
|
Posted: Thu Oct 8th, 2009 03:47 pm |
|
I had the time to stop by my local gun store yesterday where one of the guys there actually teaches the CHL course, and for the most part they have all always seemed fairly knowledgeable, so I decided to present this question to them!
I walked in and there were two 'kids' (one of whom I've talked to before in there and has been helpful/knowledgeable in the past, the other I've never seen we'll call him kid1) behind the counter, a patron talking to the them (primarily the one I've dealt with before, we'll call him kid2) and a few other people and employees about the store and in the back...
Kid1 asks if he can help me and I inform him that I have an out of the ordinary question regarding CC. I tell them I am only interested in actual LEGALITY not opinion on if there was any law, case, ruling, etc that prohibited the open carrying of loaded magazines (presumably while concealed carrying a handgun...)
Kid1: No way you can do that, the gun must be concealed!
Kid2: (confused look on face) Why would you even want to? Why would you need extra mags? Just keep them concealed too if you feel you have to carry them...
Patron: Only one that actually understood the question, and seemed to acknowledge the reasons behind it!
ME: My reasons for why aren't important, I am simply curious about the legality. What YOU would or would not recommend/do is not the question. (towards Kid1) do you have any reference for that?
Patron: I hadn't thought of that before... Sounds like a good idea to me! I'm from Arizona and this whole must conceal thing kinda gets on my nerves...
K2: (actually thinking now, but still spouting 'anti'/scare the sheeple/you will be first shot/etc babble) realizes that he cannot think of ANY law/case/ruling/etc prohibiting my scenario!
He goes to the back to 'Ask the Big Guy' and comes back with the same: I asked 'Big Guy' and he says that he can't think of anything prohibiting it either! It should be perfectly legal to OC a loaded magazine weather or not you are CC a handgun! (although, he wouldn't recommend it...)
Then Patron asked if I had seen about the protester with the AR, and we discussed that for a while and
Kid1 says: You can't carry an AR-15 here!
ME: Why not?
K1: the law!
Me: What law? Please show me. There is no restriction on the carrying of long guns in the state of Texas!
K1: well, it can't be loaded! You can't have the magazine loaded and with you!
Me: repeat previous statement
K2: Actually, you can carry a loaded rifle around all you want in your truck... But if you were to try walking down the street (with loaded long gun) you'd get arrested as a threat...
Me: Why? Not if you have the gun slung over your shoulder! Disorderly conduct requires 'intent to alarm'!
K1: (pretty much has shut up at this point as he finally realizes that he has no clue about the actual laws!)
K2: Continues to try to convince me that all I've suggested are BAD ideas that will get me arrested and charged with something (possible, but nothing would stick, and I would then be able to sue the pants off the arresting officer(s) and their department...)
Patron: now has a smirk on his face presumably contemplating lots of possibilities! I hope to run into him again as I believe that he is a like minded individual, but I didn't really have the opportunity to continue the discussion with him individually as at this point the conversation pretty much died with K2 appearing slightly agitated at the audacity of my suggestions and new customers entering the store.
I always felt that that store was more open to the ideas (right!) of OC and the individuals gun rights in general! I was quite shocked at the reception that I, and my questions, received! But I was able to educate K1, and make K2 think of some possibilities, and potentially find another 'ally' in the area; so, all in all, I would say a decent turn out to my day!
Sorry for the LOOOOONG post, but I needed to rant a bit, and kinda needed to go 'script' style to get the story out properly... My 'script' is NOT word for word, it is summarized and none of the statements can be taken as exact quotes!
|
KBCraig
Regular Member
| Joined: | Tue Aug 7th, 2007 |
| Location: | Northeast Texas |
| Posts: | 1539 |
| Status: |
Offline
|
|
Posted: Thu Oct 8th, 2009 09:11 pm |
|
Gator, you certainly confirmed what most of us already know: that people who work in gun stores generally know almost nothing about gun laws. (And not much about guns either, but that's a different topic.)
|
DocNTexas
Regular Member
| Joined: | Wed Nov 7th, 2007 |
| Location: | Texas USA |
| Posts: | 204 |
| Status: |
Offline
|
|
Posted: Thu Oct 8th, 2009 11:47 pm |
|
Gator5713 wrote: Doc,
While that is very good information, and a very good summary of the law in this state regarding the carrying of a handgun, it did not in any way address the question at hand!
OK, I guess I misunderstood the actual question. I thought it was a matter of carrying an unloaded gun (my mistake). Based on your last post I take it that the intent of the question was to find a way to legally let the public know you are carrying a gun.
In that respect, I must say that leather and magazines are not in themselves illegal to carry. The test question would be "If one were to carry loaded magazines would that be illegal? The answer is clearly" NO", this would not violate the law. In comparison, pose the same question to an unloaded firearm, the answer is "YES", this is a violation of Texas law. So, what about carrying a concealed handgun and clearly visible magazines? This is a bit tricky.
First off, it is clear and understood that we are talking about a person with a CHL because that is the only one who can legally carry a handgun in the first place. Now, the law does not stipulate that the magazines are integral to the handgun nor does it stipulate that all parts and accessories be concealed, merely the handgun. However, the requirement to conceal basically requires one to reasonably attempt to maintain concealment to the point that the ordinary observer would not recognize it as a handgun. I would say that clearly exhibiting magazines would be like wearing a sign that says "I carry a concealed handgun". This would make it reasonably clear to the casual observer that the bulge under your jacket was a handgun. While a sign is not illegal to wear and neither are magazines, I feel the law would find that they served to alert the public that you were carrying a handgun and thereby violate the requirement to maintain concealment.
In this case, it is not a loophole because the intent of the law requiring concealment is the key. The same is true in reverse as protection from accidentally failing to maintain concealment. The law says one must intentionally fail to conceal to be a violation. This means that as long as reasonable measures are take to conceal, any accidental exposure is not a violation. I regularly carry in my waste band under a Tee shirt and it clearly shows a bulge, however, although those who carry probably know or at least highly suspect it is a handgun, the common observer cannot and it is legal. I also use a jacket and side rig in cooler weather and when reaching for items on the top shelf or my wallet it is partially exposed to the point of recognition but it is not intentional thus legal.
Just my thoughts.
Doc
|
Gator5713
Lone Star Veteran
|
Posted: Fri Oct 9th, 2009 01:29 am |
|
Thanks Doc! You definitely got the topic down now! I definitely see your logic! And that is basically what I was asking, however I would like to see some actual case law, or legislative cite, or AG opinion... (actually, I probably don't want to see the AG opinion, but alas...) Would wearing a T-Shirt promoting carry (of any sort) constitute 'failure to conceal' based on the fact that a casual observer could guess that you are possibly carrying? How about having a conversation in a public place about carry/CHL/etc... A casual passerby could easily overhear the conversation and come to the conclusion that some if not all of the members are carrying. Could that be considered failure to conceal?
I think that 'failure to conceal' and 'notification of carry' could very well be 2 completely different animals!
Technicality, maybe, but also a possibility!
I like this discussion, very very good info and well based opinions so far!
|
DocNTexas
Regular Member
| Joined: | Wed Nov 7th, 2007 |
| Location: | Texas USA |
| Posts: | 204 |
| Status: |
Offline
|
|
Posted: Fri Oct 9th, 2009 03:35 am |
|
Gator5713 wrote: Thanks Doc! You definitely got the topic down now! I definitely see your logic! And that is basically what I was asking, however I would like to see some actual case law, or legislative cite, or AG opinion... (actually, I probably don't want to see the AG opinion, but alas...) Would wearing a T-Shirt promoting carry (of any sort) constitute 'failure to conceal' based on the fact that a casual observer could guess that you are possibly carrying? How about having a conversation in a public place about carry/CHL/etc... A casual passerby could easily overhear the conversation and come to the conclusion that some if not all of the members are carrying. Could that be considered failure to conceal?
I think that 'failure to conceal' and 'notification of carry' could very well be 2 completely different animals!
Technicality, maybe, but also a possibility!
I like this discussion, very very good info and well based opinions so far!
I totally agree it is gray area when considering shirts, private conversation in public places and so on. I would say wearing a shirt that has a pro carry statement would be less of a problem unless the bulge was very apparent. It could be held that the bulge was intentionally large to indicate the presence of what the shirt promotes. On the other hand, if well concealed then the shirt could hardly be considered as a statement of your actions at the moment.
I see it as having to consider the overall picture. Since "gray areas" are subject to judicial interpretation it usually takes a preponderance of evidence in favor of intent to convict. In other words, you can usually offset a bold statement with mild actions and vice-versa. So, if you wear a pro-carry shirt, make sure you conceal well. And if you are lightly concealed, don't use a Pro-carry shirt to do it.
As for discussions, there is nothing that says you cannot disclose to a friend that you carry or have a CHL. The provision of concealment tends to be directed at the general public at large that might be alarmed by it, not those who know you and are not alarmed by it. If you are overheard the question would be are you openly broadcasting the point or were you merely overheard having a passive discussion with a second party.
I actually put little effort into concealing my sidearm. I do not flaunt it by any means but a 1911 or Sig 229 under a tee shirt or light jacket shows a definite bulge. To date I have never had a problem. At the same time, I have a habit of covering my weapon with my arm, mainly to protect and secure it but it serves to obscure it from view as well.
I do not know of any case history that would be relevant here but based on how the courts tend to analyze these things that is how I see it going.
Again, just my thoughts.
Doc
|
cbackous
Regular Member
|
Posted: Sat Oct 10th, 2009 06:45 am |
|
| After reading through the posts i think Doc has hit the nail on the head. Very much a gray area that will require a court ruling to test the waters.
|
Gator5713
Lone Star Veteran
|
Posted: Sat Oct 10th, 2009 03:16 pm |
|
cbackous wrote: After reading through the posts i think Doc has hit the nail on the head. Very much a gray area that will require a court ruling to test the waters.
I very much agree as well! Of course, I seriously doubt that without a 'MWAG' call of some sort that the issue would really ever come up... And I also doubt that without extraneous circumstances that it would make it to trial if you were to become of 'interest' to officers. Of course, I'm still not sure that I'm ready to be the test dummy, just not that much cash for a good set of attorneys on hand... (That and I don't currently have a CHL!)
|
CommonMan101
Regular Member
| Joined: | Wed May 20th, 2009 |
| Location: | Dallas, Texas USA |
| Posts: | 33 |
| Status: |
Offline
|
|
Posted: Sat Nov 7th, 2009 02:33 am |
|
I think Gator's experience with the kids is a fine example of people thinking the laws (and assumptions about those laws) that they grew up with are what MUST be right. The out-of-stater was able to see things as what they could be because he was used to less restrictions in the first place. I see this from all states - those from New York and New Jersey have shown a propensity for "reasonable" (abhorible to me) gun restrictions and the like all the while convinced they are for gun rights. "However we have it is the way it should be" syndrome. I think Vermont is the only one that can really say that.
This thread has me wanting to openly wear an empty holster and loaded spare mags on the other side - with no gun on me or in my car. I wonder what would happen if they stop me. Would I still have the right to refuse a search or would I be considered to be disturbing the public? Actions by me being the same as any normal shopping at the store - just an empty holster and filled mags. Yet it would seem reasonable to me, if I were a cop, to want to know what the deal is - it's not like eveyone does that! Would he be able to do anything about it even if you let him search and he found no weapon and you identify yourself, etc. ? Plausible scenario - If I were doing guard duty on my property and left my gun with my wife and dashed to the store like this.
Any TX lawers around here have an idea? Any TX officer's around have experience with this?
Would be nice to do as part of a protest/demonstration as one or many!
|
Gator5713
Lone Star Veteran
|
Posted: Tue Nov 10th, 2009 01:38 pm |
|
CommonMan101 wrote: I think Gator's experience with the kids is a fine example of people thinking the laws (and assumptions about those laws) that they grew up with are what MUST be right. The out-of-stater was able to see things as what they could be because he was used to less restrictions in the first place. I see this from all states - those from New York and New Jersey have shown a propensity for "reasonable" (abhorible to me) gun restrictions and the like all the while convinced they are for gun rights. "However we have it is the way it should be" syndrome. I think Vermont is the only one that can really say that.
This thread has me wanting to openly wear an empty holster and loaded spare mags on the other side - with no gun on me or in my car. I wonder what would happen if they stop me. Would I still have the right to refuse a search or would I be considered to be disturbing the public? Actions by me being the same as any normal shopping at the store - just an empty holster and filled mags. Yet it would seem reasonable to me, if I were a cop, to want to know what the deal is - it's not like eveyone does that! Would he be able to do anything about it even if you let him search and he found no weapon and you identify yourself, etc. ? Plausible scenario - If I were doing guard duty on my property and left my gun with my wife and dashed to the store like this.
Any TX lawers around here have an idea? Any TX officer's around have experience with this?
Would be nice to do as part of a protest/demonstration as one or many!
I think that testing these waters as a group would likely be the best way to handle it and could likely get us some (good) publicity for our cause! Another reason that I'm not necessarily ready to test these waters solo (with empty holster, Magazines, and NO gun) is the fact that i don't like the idea of being un-armed, especially when I am putting forth an 'armed display'!
I am a fairly 'self confident' individual, weather armed or not; and tend to get that 'warm fuzzy feeling' when I see evidence that someone else around me is carrying as I know that the area I am in is a safer place! I do not like the idea of reaching to my holster and finding it empty! That would be like driving halfway across the country just to realize that you forgot your load! (I'm a trucker...) only worse, as this scenario could cost me (and others) my life! The known presence of a gun could deter a criminal 'incident', however the observed 'absence' of a weapon where one should be...? Not so sure about...
I'm not sure if I accurately described my hesitation, and I'm not sure that I really have a good reason for it (other than money for defense...), but I'm sure that you get the idea...
|
Current time is 12:38 am | |
|
|
|
