Open Carry Texas statement following dallas shooting

Temple, TX, July 11, 2016 – In light of the abhorrent tragedy that occurred in Dallas last week, we would like to address the current push to change or abolish our right to keep and bear arms. It goes without saying that our condolences are with the families and victims. Since Texas became an independent nation in 1836, the right to bear long arms has been a lawful act. This is nothing new and has nothing to do with the recently passed handgun open carry law. To suggest that open carry had any role in the shooting, the response, or the aftermath is unsupported by the facts and is both wrong and deplorable.

The fact is that there is ample evidence on social media that law enforcement was not confused during the shooting about who was a good guy and who was a bad guy with a gun. Video evidence is clear that officers felt quite at ease during the incident in the presence of open carriers. Once an individual was identified, he promptly turned himself in to assure the public that he wasn’t a threat. We applaud his actions, but condemn Dallas PD for continuing to hold his lawfully possessed firearm even after clearing him.

In light of this incident, Open Carry Texas (OCT) has several suggestions for both law enforcement and open carriers should a similar, highly unlikely event ever occur again.

We applaud law enforcement for the professional and competent manner in which they quickly identified the source of the mayhem and their bravery in confronting it. We reject the notion, as posited in the media by the Chief and Mayor, that officers aren’t intelligent enough to tell the difference between a “good guy and a bad guy.” What is the difference between law enforcement treating the public this way and the public asking how they are supposed to tell the difference between a “good cop and a bad cop.” Both are offensive to hear, but both are equally accurate. It’s a simple concept to tell the difference: the good guys are shooting in the same direction as law enforcement (or not at all) and the bad guys are shooting at them. The good guy responds to police orders. The bad guy does not. Over the past three years, OCT has had numerous encounters with law enforcement around the state, from big cities to small rural towns. These officers have demonstrated time and time again the ability to tell the difference. If Soldiers in combat can do it successfully, we have full faith and confidence that law enforcement officers can as well.

Even suggesting that open carry played a factor, this is attributed to how some in law enforcement view a law abiding citizenry. All too often, we are viewed as a threat or the enemy. There is a perception that only law enforcement should be allowed to carry a weapon in public. This creates animosity and distrust between the law enforcement and gun rights communities. This must change. Law enforcement departments must experience a paradigm shift in their mentality and accept gun owners as an ally, not an adversary. Throughout history, there are stories of law abiding citizens helping law enforcement suppress a threats and having their back. We call on law enforcement to return to this model. There is not an infinite number of police in this country and working with the citizenry instead of against them only results in safer communities. They must stop viewing law abiding citizens with a firearm as suspects.

We applaud Mark Hughes for immediately making himself available to law enforcement as soon as he found out he was considered a suspect. While he disagree with his decision to voluntarily surrender his firearm and DPD keeping his firearm, we praise his good judgment in defusing what could have been a deadly situation. We would like to offer a few suggestions for open carriers in these instances.

First, if carrying a handgun, keep it in a holster and keep your hands off of it unless needed. If you are carrying a long arm, rifle or shotgun, carry it in a non-threatening manner. We suggest carrying it on a single point sling to the side or on your back. This more easily puts people nearby at greater ease.

Second, if you find yourself in the vicinity of an active shooter and your life is not in danger, do not get involved, if possible. Obviously, society is filled with veterans and others whose personal values and honor require that they run towards gun shots instead of against them, but make sure you understand the risks in doing so and are cognizant of those around you. Coordinate with law enforcement if at all possible and obey orders from law enforcement officers.

Third, if your life is in immediate danger, defend yourself with judicious marksmanship. The risk at that point of being shot by law enforcement is no different than the risk of being shot by an active shooter. Once the threat is neutralized, immediately go back to a non-threatening posture by either holstering your weapon if you have a handgun or placing it on your back if you have a rifle. If/when law enforcement arrives, it is a good idea to work with them as they survey the area to ascertain what happened and who is at fault. However, it is important to realize that if you are taken into custody as a potential suspect, it may be a good idea to stop talking and contact your attorney. We encourage our members and all gun owners to obtain gun owner legal protection – like SelfDefenseFund.com or Firearm Legal Protection – so they are protected under such circumstances.

OCT is an organization dedicated to the safe and legal carry of firearms in the State of Texas in accordance with the United States and Texas Constitution and applicable laws.

About Open Carry Texas: Our purpose is to 1) educate all Texans about their right to carry in a safe manner; 2) to condition Texans to feel safe around law-abiding citizens that choose to carry them; 3) encourage our elected officials to pass constitutional carry legislation for all firearms; and 4) foster a cooperative relationship with local law enforcement in the furtherance of these goals with an eye towards preventing negative encounters.

SCOTUS Abortion Decision A Win For Gun Rights

You heard that right. The Supreme Court recently ruled in a 5-3 vote that Texas’ laws to ensure the safety of women desiring to kill their unborn babies were unconstitutional. The Whole Woman’s Health v. Hellerstedt case may have been a case about so-called abortion rights, but the court inadvertently gave gun rights advocates something to cheer about.

The majority Hellerstedt decision, in responding to the dissenting justice’s arguments, contended that the law requiring certain sanitary and admittance procedures be followed for abortion clinics to perform their grotesque acts of infanticide could not be based on the Kermit Gosnell scandal (click the link for information about that since we won’t go into detail here), the doctor convicted for murdering three infants who were born alive in a botched abortion. The court said that, in essence, you can’t point to the bad behavior of some to punish the rest.

Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years…Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually…The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.

Any future gun control cases could easily reference this case to argue that deterring people who use guns in criminal activities isn’t assured through more gun control. Any so called “assault weapons ban” would be especially vulnerable since they are used in such a minuscule number of shootings. The “gun show loophole” is likewise suspect since criminals intent on buying and selling guns won’t submit to BGC anyway. You don’t stop criminal behavior by punishing law abiding citizens.

The fact is that passing more laws aren’t going to deter someone hellbent on committing heinous crimes. However, those same laws will make it more difficult for law abiding citizens to defend themselves against such people. Without realizing it, SCOTUS just handed us a minor victory.

OPEN CARRY TEXAS STATEMENT ON GUN CONTROL PROPOSALS IN CONGRESS

Temple, TX, June 16, 2016– For more than 15 hours yesterday, Democrats took to the Senate floor to filibuster in an effort to force votes on amendments designed to restrict the rights of Americans to keep and bear arms. Open Carry Texas (OCT) vehemently, categorically, and whole-heartedly opposes every proposed measure, including the NRA-backed amendment sponsored by Senator John Cornyn (R-TX) requiring a mandatory wait period.

When the People give the government the ability to determine who is “eligible” to exercise a right, what’s to stop the government from determining no one is “eligible?” While we also oppose the current background check (BGC) system, broadening it will do nothing to keep guns out of the hands of dangerous individuals. Extended BGCs do nothing more than inconvenience and interfere with the rights of law abiding citizens to keep and bear arms in the manner protected by the constitution: uninfringed. We oppose the so-called “universal BGC” proposals as infringements upon our rights.

The terrorist watchlist and “no-fly” list are both subjective, arbitrary lists that also do nothing to ensure the safety or security of the American people. As a gun rights organization who is dedicated to the safe and legal carry of firearms, we do not want killers having the ability to take the lives of innocent people. However, we also recognize, as Benjamin Franklin did, that “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

The process by which the government determines one to be ineligible to fly is a secret. There is no notification process to an individual placed on the no-fly list, meaning that Americans frequently don’t find out until they’re already trying to board a plane. There is no appeals process for being removed from the list and – other than politically connected individuals – it is nearly impossible to do so. Due to the complete lack of due process involved in the “no-fly” list, OCT condemns and opposes any effort to prevent law abiding citizens who have not been adjudicated by a court from exercising their right to keep and bear arms, including the right to purchase them, based on such a list.

The terrorist watchlist is an even more egregious and constitutionally offensive strategy to undermining our civil rights. While the word “terrorist” is surely intended to conjure up images of body counts, grotesque violence, Muslim extremists, and wholesale fear. The problem is in who gets to decide what constitutes a “terrorist.” The suggested amendment to deny gun rights to individuals on the terrorist watchlist does not seek to deny guns to terrorists, but to people suspected of being terrorists. Anti-liberty politicians want to use this broad and ominous term to deny rights to a category of people that has no baseline definition other than “the use of violence and intimidation in the pursuit of political aims.” Once the government is given permission to bar individuals deemed to be potentially engaging in or planning to engage in “terrorist” activities, there is no stopping the government from deeming anyone a “terrorist” that opposes its will. In fact, both Open Carry Texas and the National Rifle Association have been accused of being terrorist organizations and its members “domestic terrorists.” The Founding Fathers would have been labeled terrorists in the late 18th Century.

Due to the lack of due process involved in every amendment being proposed, we cannot support, endorse, or accept any of them. We will not condone the destruction of any aspect of our constitution under the guise of public safety. Senator Cornyn’s bill would treat people adjudicated without due process as criminals just for being placed a list without warrant, affidavit or cause. “Liberty is always dangerous, but it is the safest thing we have” and we can’t allow fear-mongering to alter, abolish or infringe upon it no matter how feel-good it may sound. The shooting in Orlando was a government failure, not a failure of our constitution.

OCT is an organization dedicated to the safe and legal carry of firearms in the State of Texas in accordance with the United States and Texas Constitution and applicable laws. About Open Carry Texas: Our purpose is to 1) educate all Texans about their right to carry in a safe manner; 2) to condition Texans to feel safe around law-abiding citizens that choose to carry them; 3) encourage our elected officials to pass constitutional carry legislation for all firearms; and 4) foster a cooperative relationship with local law enforcement in the furtherance of these goals with an eye towards preventing negative encounters.

Can an HOA or Apartment Complex Ban Guns?

This is another interesting question sent to us and one the courts haven’t yet had to wrestle with in Texas that we’re aware of. Texas law does not address whether Homeowner’s Associations may infringe upon basic constitutional rights. Some states expressly prohibit HOAs or landlords from passing rules or regulations that bar its citizens from legally carrying self-defense firearms. Texas is not one of them. All is not lost.

Under American Jurisprudence, a Servitude (basically an HOA, but specifically defined as “a right by which something – as a piece of land – owned by one person is subject to a specified use or enjoyment by another”) cannot “unreasonably burden a fundamental constitutional right” (§ 3.1(2) Validity of Servitudes: General Rule, Restatement Third, Property (Servitudes) American Law Institute 2000). In other words, even though an HOA is allowed to set certain rules and regulations related to the properties it oversees, it cannot violate your rights wholesale. Additionally, a HOA rule or regulation that lacks “rational justification” is likewise invalid.

Many Home Owner Associations seem to be run by very authoritarian leaders. Many do not. Those that do feel as if they can rule over their “kingdom” with an iron fist and impose their will on everyone else. These are the people that will try to use “gun violence” as a “rational justification” for gun bans. This line of thought has been losing a lot of steam lately. Most recently, in the Matthew Grace and Pink Pistols v District of Columbia and Cathy Lanier opinion, a federal court in DC essentially laughed at the “more guns equal more crimes” mantra that so many anti-gun jurisdictions and entities espouse today.

All [the government] offer[s] by way of reasoning is that all guns, even guns carried in self-defense, increase the incentive for criminals to carry guns, or increase the chances for accidents. But as plaintiffs rightly emphasize, “it is ‘not a permissible strategy’ to reduce the alleged negative effects of a constitutionally protected right by simply reducing the number of people exercising the right.”

The District’s policy thus bans some citizens from exercising their constitutional right to carry firearms outside the home for self-defense, and no amount of proof of the negative effects of exercising a constitutional right can justify a ban.”

So the question becomes does an HOA ban on open carry in public areas violate a fundamental constitution right. The answer is “no” as long as they aren’t also banning concealed carry. However, a sign saying “no guns allowed” would violate American Jurisprudence (common laws of the United States) and be “invalid” by law. An HOA also cannot prohibit carry on any land that is managed by the association of which a homeowner is a member.

In the same vein, condominium complexes are shared interests in which tenants own their particular condominium and the common areas. Penal Code 46.02 specifically allows for carry “on the person’s own premises or premises under the person’s control,” this includes the common areas of the complex. In fact, in the Texas Court of Criminal Appeals case Chiarini v. State of Texas, the court held that just that.

We conclude that appellant’s undivided ownership interest in the common area of the condominium complex made the common area appellant’s “own premises” under the UCW statute. Because appellant was carrying a handgun on his own premises, he did not violate § 46.02.

The HOA may restrict guns in a community meeting room if the proper signage is posted at every entrance but the HOA cannot restrict guns in the entire HOA jurisdiction area. The bottom line is that in an HOA, it would likely be a very long, hard–fought battle if the board wants to challenge the home owners’ right to bear arms.

Where the law gets diluted and confusing for some is when applied to apartments or rental homes. Under current Texas law, private property owners can ban licensed open carry, concealed carry, or both in common areas of their “property” as long as they provide notice. Home owners and renters of houses are the same as to their rights. The same applies to renters in apartment complexes. You can also have guns in hotel and motel rooms for as long as the rent is paid but the hotel or motel may restrict the common areas by the proper signage if the signs are posted at every entrance to a common are.

It is not a stretch of the imagination that a resident in a rental property who is assaulted, injured, or otherwise victimized due to a landlord’s decision to disarm them could sue for damages for failing to provide adequate protection to the tenant. This is an area that apartment complexes and landlords need to take into account when drafting their tenant policies.

Like HOAs, no court would likely find in favor of a tenant if the landlord merely banned open carry in common areas because there is still an alternative to legally carry for self-defense on the property if concealed. Since there is an alternate available, the rights of the tenant are not being “irrationally” violated, even if the rationale of such a decision may not be agreeable to those of us that know better. Tenants in rental homes or apartment complexes in which the landlord has decided to place both 30.06 and 30.07 signs should have a talk with the management and make them aware that banning all guns on its property sets them up for lawsuits should anyone in the complex be victimized. At a minimum, this would at least dissuade them from posting 30.06 signs in common areas.

Keep in mind, though, that 30.06 and 30.07 signs only apply to the LICENSED carry of a firearm. Therefore, the signs are meaningless to possession of unlicensed firearms because Penal Code Section 46.02 provides an exemption as listed above. Since the signage requirements only apply to “license holders,” law abiding gun owners without a license who carry only in their vehicles or homes (or to and from them) wouldn’t be subject to them. In these cases, it’s best to keep it to yourself lest the landlord decide to close this loophole.

This is a problem that may require a legislative solution. It is a difficult balancing act between property rights, gun rights, and the inalienable right to life, which predicates a right to defend that life. If the legislature forbids landlords from completely banning guns on its property, then it essentially says gun rights trump private property rights. If it does nothing, it essentially says private property rights trump gun rights.

An unfortunate solution to this conundrum may be that someone gets injured, critically injured or dies as a result of a gun ban by a landlord. If a landlord is successfully sued into bankruptcy or feels the pain of such a lawsuit, other property owners will be forced to wake up and reevaluate their policies. This can be preempted by someone wealthy enough to preemptively sue or is able to find a sympathetic attorney to challenge the polices now since they do have standing for such a case.

The ability to ban guns only applies to privately owned rental properties and not publicly owned ones. Under Texas law, government entities CANNOT create rules or regulations more strict that state law, which includes banning guns in government housing.

To summarize, an HOA cannot completely ban guns within its jurisdiction because properties within it are privately owned even if communally managed. On the other hand, private property owners of homes or apartments can ban guns in common areas on their property if they choose under current law. The only choices are to accept it, challenge it in court, or choose not to live in such a place to begin with. Public housing is different since it is a government run entity and cannot ban guns of those that are legally allowed to possess them.

Now, for a dose of reality. When it comes to having to defend yourself if you are charged with a violation, the reality about what the law says is that the answer is “what the Judge or Jury says on that day.”
Unfortunately common law is often based on a particular set of bad facts. An example might be where someone accidentally discharges a weapon in an apartment complex and kills a child.  In this case, some Judge is going to hold that it is the right of the landlord to exclude guns and since the landlord did not exclude weapons then they are civilly liable for the shooting.  On the other side is the scenario that you are presented with where a Judge may create civil liability because the tenant was denied the right to carry concealed or otherwise.  Of course, the argument usually then goes that the legislature should give more clear guidelines.  A good example that is the current campus carry law where both sides are already trying to exploit the legislation that was written due to poor wording and an attempt by legislators piecemeal rights.
In the end, the only way to make this more black and white is to pressure the legislature to address is pointedly and specifically as possible.
Hope this does muddy up the waters further but it is the world we live in.

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Disclaimer: This post is not intended to be legal and is shared for informational purposes only.

 

30.06 Signs and Vehicle Carry

We recently had a question sent to us about whether a business could put up a 30.06 or 30.07 sign up at the entrance to a parking lot. The question was whether they could ban the entire parking lot from open or concealed carry. The answer is “yes” and “no.” Let me explain.

We’ll begin with Government Code Section 411, which is what governs who is “eligible” to carry a self-defense firearm. There are certain requirements and criteria for who can and cannot carry. There are also proficiency and training requirements prior to being issued a government permission slip to carry. This section deals specifically with licensing and does not address concealed carry in a vehicle. It is the predicate for most other laws dealing with self-defense carry and provides the means to do so.

In 2007, the 80th Legislature pass the Motorist Protection Act. This bill amended Penal Code Section 46.02. This is the section of Texas law that violates our state and federal constitutions and makes ALL carry illegal except for those given permission to break the law after being issued a license. However, there are two instances where the law doesn’t apply. Those are:

(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.

Section 46.15 previously exempted someone who “is traveling” from the 46.02 ban, but the MPA clarified this because it was being enforced differently. What does “travel” consist of? Some departments were putting a minimum mileage requirement. Others said it applies to travel outside the county. Still others put time requirements on one way travel. Either way, current law states that anyone who lawfully possess a handgun can have that handgun in a vehicle without a license provided it is concealed. And, as of January 1, 2016, you can have an openly carried handgun in a vehicle provided it is in a “belt or shoulder holster” that is carried “on or about the person.”

Now that we have the law laid out, let’s get to the meat of the question. Can a business ban guns on their entire property. First the “no.” Labor Code Section 52.061, which was passed in 2011, specifically protects EMPLOYEES’ right to have a handgun in their vehicles if they are licensed.

A public or private employer may not prohibit an employee who holds a license to carry a handgun…who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.

However, it would seem that the law does not specifically protect all OTHER gun owners from having a gun in the parking lot of a business.  This was made clear as mud during discussion on the bill in 2011 on whether it applied to everyone and the entire property. It seems as if the legislative intent was to include everyone, but the words didn’t. Here’s a little bit of that discussion:

REPRESENTATIVE BURNAM: This amendment simply addresses the concern that I was raising in my point of order. If you look at the definition in the Penal Code, which is the last section of the bill as filed, it is much more comprehensive than what the bill’s been represented. So, this amendment is intended to simply do what the bill analysis said it was going to do, which would allow what the author of the bill is trying to accomplish without allowing them to take guns on other parts of the grounds, of the campus, of the facility, of the business. Move its adoption.

REPRESENTATIVE KLEINSCHMIDT: Members, the statutory language used to define premises is in the Penal Code, it’s out there, it’s been used. To add another term or premises in the law today just doesn’t get us anywhere. It’s not practical. It just leads to more questions in the statute. Penal Code’s got a good definition.

BURNAM: On the Penal Code—it s defined, is that not correct, in the senate bill? Or it’s referred to.

KLEINSCHMIDT: —refers to the section of the Penal Code that defines premises.

BURNAM: Right, and in the Penal Code, the way they define premises is strictly the building—that s not applied to the grounds, the sidewalks, the picnic areas, or any other aspect of the facility. Is that correct?

KLEINSCHMIDT: I believe that s correct—does not include the parking lot.

BURNAM: So, I don t understand. All I ’ m trying to do is better define what you ’ say in your bill analysis you re trying to do, to make sure it does what you say in ’ your opening comments about the bill. All I m trying to do is define it to do what ’ you say it does. So, what s your objection? ’

KLEINSCHMIDT: I think the bill stays a lot cleaner if you don t add a new definition to the statutes.

BURNAM: Well, there s this misrepresentation that’s going on as to whether or ’ not we intend to open this up or actually do what you said you did, both in the subject line and the HRO report. We’re just talking about honesty in communication about what s going on. So, I’m just trying to get a clear definition.

KLEINSCHMIDT: Well, an amendment ought to clarify the statute. This doesn’t help, it simply adds an additional definition into the statutes. 

BURNAM: So, what you are saying is, it is your intent in this legislation that it be restricted to parking lots, and not be able to carry guns around, and other various parts of the campus, of the business facility.

KLEINSCHMIDT: This is a parking lot bill. There is no intention for employees to be able to carry beyond their employer’s parking lot. It’ll let them carry in the parking lot. They can show up in their vehicle with it and have it in their locked vehicle in the parking lot.

So, SB 321 specifically protects employees, but what about the rest of us? The law says we don’t need a license to carry in a vehicle. What if a business puts up a 30.06 or 30.07 (or both) to prevent open or concealed carry at the entrance to the entire property.  While the legislators were arguing intent for employees on what defines a “premises,” 30.06 uses another word: “property.” That is a much different word that is more encompassing. So, let’s look at 30.06/07.

If a private or public entity wanted to ban concealed carry – where allowable under law – all they need to do is put up a sign in accordance with Penal Code Section 30.06. It makes it an offense for a person who “carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent” and if the license holder “received notice that entry on the property by a license holder with a concealed handgun was forbidden.”  Notice consists of a “card or other document” (like a sign) on which is written specific language. Penal Code Section 30.07 is identical, except it applies to open carry. Entities that want to ban both must post both signs.

So, since GC 411 only applies to licensed carry of a firearm, PC Section 30.06 or 30.07 aren’t applicable to unlicensed concealed carry in a vehicle. The signs only apply to “license holders.” Keep in mind that this only applies in vehicles because it’s still “illegal” to carry a handgun outside your vehicle or property under your control without a license. This is why a 30.06 or 30.07 sign at the entrance to a parking lot does not prevent those without a license to carry from carrying concealed in a vehicle only. Once you step out of that vehicle, the signs apply if you have a license. If you don’t have a license, you’re breaking the law under PC 46.02.

Here’s the kicker and the area where we don’t feel comfortable making a definitive statement: if you have a license to carry, the law would at least appear to say that the sign DOES apply to you, while the sign would mean nothing to an unlicensed carrier in the vehicle. To understand how to think like a government official, remove your brain.

Hopefully this clears it up for everyone.

Open Carry Texas relies on the generosity of our members to complete our mission and objectives. Please consider being a high caliber supporter by making a monthly donation of $2.23, $5.56, $7.62 or any other amount here.

Disclaimer: This post is not intended to be legal and is shared for informational purposes only.

Why is open carry so important?

C.J. Grisham, President, Open Carry Texas

1453154378922For the past three years since my arrest, I’ve worked hard to get better gun rights legislation passed through the Texas legislature. As of January 1 of this year, a licensed gun owner can carry a holstered handgun openly instead of being required to cover up. It took a lot of hard work from a lot of people from El Paso to Beaumont, Harlingen to Lubbock and Texarkana to Odessa to make it happen. I wanted to take a quick moment and explain why this is an important law because there are three main reasons why you should support it.

Convenience – The fact is that a thin piece of fabric is the only difference between someone carrying a gun concealed or openly. If you want to take off your coat to sit down for a cup of coffee or a burger, you can now do so without having to untuck your shirt or become a criminal. You can get out of your car to pump gas or grab a quick soda without worrying my gun might be seen. People who wear shirts and ties or tucked in business casual can now defend themselves legally without having to hide their gun.
Comfort – Inside the waistband holster are uncomfortable and cumbersome. Gun owners frequently end up dressing around their firearm instead of carrying what they prefer to carry. In order to carry an outside the waistband holster – the most popular manner of carry – Texans typically end up buying clothing is a size too large so they can properly conceal them. We no longer have to do that. During the summer months, it is even more difficult to conceal during a time when clothing is kept as minimal as possible. Likewise, more women will be able to carry a handgun comfortably having the additional option to carry openly in a belt or shoulder holster and women are the fastest growing demographic for gun ownership.
IMG_0812Exposure – In my line of work in the Army, I was trained on many of the psychological aspects of criminology. Fear and anxiety are a very powerful emotions and they are used incessantly by critics of open carry. However, fear and anxiety can be cured or at least managed. As someone with PTSD I know that firsthand as I have been trained to successfully manage my anxiety as have thousands of people suffering with it. A common treatment in overcoming phobias is exposure therapy. People who are afraid to drive can’t get over that fear if they never get behind the wheel. A fear of heights can’t be overcome by standing on the sidewalk. A fear of guns in public will likewise continue to perpetuate that fear as long as they are stigmatized and invisible to the naked eye. This is what I accomplished by carrying rifles all over Texas. It took some getting used to and made a lot of people uneasy, but by the end of 2013 the number of 911 calls about people carrying rifles dropped over 97% because people knew the law and were exposed to them. People may have still be uncomfortable, but they weren’t fearful. The same is true about open carry of holstered handguns.
In 1995, when the concealed handgun law was passed, we heard much of the same outrage, manufactured fear, and belly aching that we hear today with the passage of the open carry law. Businesses scrambled to put up 30.06 signs banning concealed handguns. People predicted Hollywood-style shootouts and blood running through the streets. It was supposed to be concealed carry-initiated Armageddon. They were proven wrong. Within a year, businesses started slowly removing the signs as they realized it wasn’t a big deal and today few businesses have them up at all. The critics shriveled into their cocoons licking their wounded pride for overreacting. Open carry will be no different and will experience the same growing pains.
We haven’t done anything novel in Texas by passing this law. We aren’t even a leader in gun rights legislation. We’re still way behind the constitutional power curve. We don’t need to wonder what results open carry will bring; we can look at more than 40 states to see for ourselves. Of the 45 states that allow some form of open carry, 31 of them are UNLICENSED open carry states. In other words, we are part of only one-third of the open carry states that still require a license. Open carry was not responsible for a single increase in crime rates, death, or another N’ Sync album.
My ultimate goal and what will define my existence until I succeed is to get constitutional carry passed in Texas, make our license to carry voluntary, remove gun free zones, protect law abiding gun owners, and lower the cost of obtaining a license. Last year, the number of constitutional carry states jumped from five to seven. Two of those states are BLUE states! There is no reason that Texans are any less capable, intelligent, responsible, or deserving to exercise our rights without paying a tax and begging for a permission slip than those other states. I would even opine that we are more capable, more intelligent, more responsible, and more deserving than they are. We’re the only state in the Union that was once its own country. It’s time to be a leader again.

Misunderstanding Stand Your Ground and the Castle Doctrine

In an effort to keep our members and supporters on a broad array of gun-related topics, we will frequently share posts submitted to us from many different fields of expertise. If you would like to submit an original article or blog post, please send your submission to admin@opencarrytexas.org with the Subject line “Blog Submission.”

barnettKnow your rights and responsibilities before using force for protection in Texas

You may have heard about “standing your ground” in your “castle” against intruders.  Confusing news reports make it seem like the law grants the average citizen complete freedom to use any type of force, including deadly force, as a self-help remedy, whenever one feels threatened.  This is a common misunderstanding of the law.  Understanding the subtle nuances of Texas gun laws could mean the difference between having a justifiable defense at trial and serving time in prison.

In this article, I will discuss what is commonly called the Stand Your Ground Law or The Castle Doctrine in Texas, while highlighting several laws from Chapter Nine of the Texas Penal Code that allow for justifiable defenses at trial when a person uses deadly and non-deadly force.

Using Deadly Force for Self-Defense Purposes | No Duty To Retreat

While there is technically no law titled “Stand Your Ground” in Texas, there are provisions that allow for a legal justification for the use of force in a limited set of circumstances when a person has no duty to retreat. It is important to know when you do not have a duty to retreat, because you really do not want to get it wrong.

Examples:

  • A homeowner in his own home does not have a duty to retreat and may use deadly force to protect himself against an armed intruder.
  • A business owner in her own place of business does not have a duty to retreat from her office, and may use deadly force to protect herself from an armed robbery.
  • A truck driver, in his own truck, does not have to retreat and may use deadly force to protect against an armed car-jacking, as Texas law extends a person’s “castle” or home, to his car.

Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self-defense:

(1) reasonably believed the deadly force is immediately necessary;

(2) had a legal right to be on the property (i.e. did not have a duty to retreat);

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

(4) was not engaged in criminal activity at the time the deadly force was used.

The law does not provide a justifiable defense at trial for someone who instigates and provokes a fight, and then uses deadly force.  A person instigating a fight, in most cases, does have a duty to retreat and, therefore, will not be covered by the castle doctrine.  Additionally, to receive the protection of the “no duty to retreat” provision, an actor must have acted in compliance with Texas Penal Code §9.31, the self-defense provision.

Self-Defense Law in Texas

Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker.  The law states, “[a] person is justified in using force against another when…the actor reasonably believes the force is immediately necessary to protect…against the other’s use or attempted use of unlawful force.” If the actor knew that intruder “unlawfully with force entered” his home, vehicle or place of employment; or if the actor himself was being removed (i.e. kidnapped); or if the intruder was attempting to sexually assault, rob, kidnap, or murder, then a person may use deadly force in self-defense under Texas law.

In contrast, the use of force is not justified in verbal provocations.  Additionally, a person may not resist a reasonably conducted arrest by law enforcement and be justified in using force under this provision.  Further, if an actor provokes a physical altercation and does not abandon the encounter, he may not use deadly force for self-defense as a justifiable defense at trial.  

The Difference Between Deadly Force and the Threat of Force

The Texas Penal Code very clearly delineates between deadly force and the threat of using force.  Deadly force is not the same as the “threat” of force.”  Section 9.04 of the Texas Penal Code provides that a threat to cause death or serious bodily injury by the production of a weapon, if the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.” Displaying a weapon with the goal of creating apprehension is considered a use of force, but not deadly force. 

To illustrate, imagine a landowner is on his own property and sees a trespasser running towards him.  If the landowner decides to turn in such a way so that the trespasser sees the landowner’s holstered, loaded gun and runs off the property, Texas law says this is likely a justifiable showing of force, and is not the use of deadly-force itself.

Defense of a Third Party | Defense of Others

A person is justified in using force or deadly force to protect a third party if, given the circumstances, the actor would be justified in using force or deadly force to protect himself against the unlawful force or deadly if it were happening to him.  Further, the actor must reasonably believe the intervention is immediately necessary (i.e. He can’t wait until the police arrive).

However, if in the use of force to protect an innocent third party, another is injured or killed, the “justification afforded by [TPC 9.33] is unavailable in a prosecution for the reckless injury or killing of the innocent third party.”

Protection of One’s Own Property

In Texas, force may be used to protect one’s own property.  A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…”  However, the use of deadly force to protect one’s own property is limited.  “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement].  Tex. Penal Code Section 9.42.

Know Your Rights and Responsibilities

In conclusion, while Texas law does have a few “stand your ground” and “castle doctrine” type provisions, justification for use of force and deadly force must be proven, under a very limited set of circumstances.  Further, even if a person has a justification for using force, he may still be arrested and face trial—these justifications are not a waiver of court proceedings altogether.  A court of law must determine that an actor had legal justification to use force.  Moreover, even though an actor may have been justified in using force—deadly or non-deadly—

he may face civil litigation and penalties associated with the use of force against another.

Using force for self-defense purposes is a serious response to dangerous and threatening situations.  Texas law makes it abundantly clear that those who use force will only be justified in doing so if they meet specific criteria, given the circumstances, and acted as a reasonable person would have acted under the circumstances.

About the Author

Brandon W. Barnett is a criminal defense attorney and U.S. Marine officer.  He is a partner with the Fort Worth criminal defense law firm, Barnett Howard & Williams PLLC. He is also an adjunct professor of Military Justice at Texas A&M University School of Law in Fort Worth.  To learn more about Mr. Barnett or Barnett Howard & Williams PLLC, visit https://www.bhwlawfirm.com.