Over the past few years, I’ve come to a sad conclusion about the state of government and liberty in Texas. If you want to know about traffic law, domestic violence, or issuing warrants, ask a cop. If you want to know about just about any other aspect of law, ask nearly anyone else – especially when it comes to gun laws. That’s not a dig on them because it’s impossible for anyone to know every single law on the books. Texas alone has tens of thousands of laws. The problem is that when cops don’t know something, they simply make it up or enforce what they believe SHOULD be the law. I can’t count how many times I’ve been at an event and told by a cop that I can’t do something and when I try to actually show the cop the actual law, he/she refuses to even read it. The ego is too big. Thankfully, not all are like this, but an uncomfortable number are.
I’ve been educating the public and government officials (including law enforcement) for years about the limitations and extent of the law as it relates to firearms in Texas. Our gun laws are scattered throughout various codes, ranging from the Penal Code to Administrative Code to Education Code and Government Code. It’s a very tangled web and makes getting new legislation passed difficult because if you remove a section from one code and not another, you could effectively have accomplished nothing even if your bill passes.
However, the Texas open carry law is not that difficult to understand. Yet, despite the straight forward nature of the law related to the limitations on government and duties of license holders, there is still confusion – or outright willful ignorance – about what cops can and can’t do and what license holders have to do. I’ve written about this issue once already here, so I won’t rehash it verbatim. But, it greatly bothers me that there are still police departments that not only believe they have authority that they don’t, but try to convince the public that they have this authority and blatantly act against their rights. They claim to support gun rights, but will use any excuse to harass you for exercising them.
On the Houston Police Department’s website, there is a Q&A about the “new” open carry law. This appears to have been done under the old chief, Chief McClelland, but the fact that citizens who go to the site and type “open carry” into the city’s search engine is still a problem since the new chief hasn’t fixed it. Inquiring minds will come across this tidbit of false information:
20. If an officer sees me openly carrying a handgun in a shoulder or belt holster, is that officer legally able to ask me for proof that I have a handgun license?
Yes, since constitutional carry did not pass, the officer is legally permitted to ask you for your license. Also, when you get your handgun license, you are instructed that if a police officer asks you for your license, you must provide it.
I’m not sure what constitutional carry has to do with this response, but it’s irrelevant. It doesn’t matter that constitutional passed or didn’t pass. Open carry, where legal as it is in Texas, does not constitute probable cause. When the open carry law was being passed, I had already done my homework and knew that cops demanding ID could be a potential issue here. Other states that passed open carry had to go back and pass additional laws that specifically tell cops not to do what the constitution says they can’t do and the courts have reminded them not to do – demand ID for simply carrying a firearm (again, see my previous post for all the legal details on this). So, I worked closely with several legislators, notably Senator Don Huffines and Representative Harold Dutton, to attach an amendment to the HB910 (the open carry law) that would SPECIFICALLY prevent law enforcement from harassing people simply for open carrying absent any other evidence of criminal conduct. In other words, if the sole reason for the stop and ID was because of open carry and nothing else, the amendment told cops to slow their role and leave peaceful citizens alone.
The new Houston police chief, Art Acevedo, immediately mobilized his statist law enforcement buddies and they flooded the legislature with phone calls demanding that the amendment be defeated. All of the law enforcement unions and associations piled on and threatened lawmakers to kill the 4th amendment protection bill. They actually fought against your right to be “secure in your person, papers, and effects!” They WANTED the ability to harass law abiding gun owners who were minding their own business. Now, I know that some people reading this are a bit more brainwashed that I am and are already thinking to themselves, “if you have nothing to hide, why not just show the ID?!” I always respond with, “if I have nothing to hide, they have no reason to harass me.” Why should I surrender my 4th amendment rights to exercise my 2nd amendment rights?! That makes no sense at all. The 2nd amendment is not a subordinate right.
Let me continue breaking down the HPD response. “[T]he officer is legally permitted to ask you for your license.” I don’t dispute that. The officer is legally permitted to ask you out on a date too. He’s legally permitted to ask you to do just about anything absent illegal conduct. Asking is one thing; demanding is another. Yes, he can legally ask you for your license. The question then becomes, “do you have to provide it?” HPD seems to think so.
“Also, when you get your handgun license, you are instructed that if a police officer asks you for your license, you must provide it.” This is where HPD goes off the rails. I do know – because I get phone calls, emails, and social media messages ALL THE TIME about this – that there are LTC instructors out there putting out false information that license holders are required to provide their LTC if a cop asks to see it. They point to Texas Government Code 411.205 as their evidence, but this is false. Nowhere in that law does it say a cop can demand an LTC (or even ask for it). It says, “when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license or identification certificate issued by the department and the license holder’s handgun license.”
Let’s break this down…again. To anyone with a high school diploma who graduated legitimately, it is crystal clear that nowhere in this section does it say “when a peace officer demands that the license holder display his license.” It says, “when…a peace officer demands…identification.” It also doesn’t say, “when a peace officer ASKS for identification.” Asking and demanding are two very distinct and different legal terms. Asking denotes a choice while demanding denotes a requirement. It also says “when” an officer demands that identification, which every cop SHOULD know they can only do when they have legal authority – when placing someone under arrest. An arrest requires PC. Open carry is not PC because the courts have already ruled on this.
Finally, basically once a police officer has been given the legal authority to demand something from a private citizen (ie: a crime has been committed), only then does 411.205 kick in. This actually only applies to license holders since citizens not carrying a firearm are not required to actually “display” identification. The average citizen, under Penal Code 38.02, is only required to provide name, address, or birthdate when placed under arrest. They don’t actually have to display anything. 411.205 places a more specific requirement on license holders once the 38.02 failure to identify statute kicks in. If a license holder is armed and a peace officer has authority to demand identification, license holders actually have to DISPLAY identification – they can’t just verbalize it.
That said, the legislature also remove any criminal penalty for failure to display an LTC, so even if they have authority to demand it, failure to do so is not a crime. It’s merely a, “hey, slave, show them your LTC. But, if you don’t, meh.” Of course, some police departments have doubled down on their statist power trips by reporting the LTC holder to the state trying to get their licenses administratively revoked, but there is no provision in the law for suspending or revoking a license for failure to display it. I have recording of a phone call with a DPS trooper in the LTC department saying this exact same thing. There’s nothing they can do, but some departments get butthurt over it.
Anyway, there you have it. Once again, I have to take time out of picking my toenails to contact another police department and formally put them on notice about their illegal policies and misinformation.