Mark Kratovil, ACDA June 15, 2016 Open Carry In Texas: A primer on the new open carry laws and their effect on the public Mark Kratovil, ACDA June 15, 2016 Sharen Wilson Criminal District Attorney

Overview Most of the new open carry laws have gone into effect as of January 1, 2016 Campus carry goes into effect on August 1, 2016 What will be covered in this presentation Brief overview of changes to Penal Code Where citizens are permitted to openly carry handguns What law enforcement can do when encountering someone carrying a handgun

Need a License to Open Carry As an initial matter, it’s critical to remember that under the new open carry law, citizens still must have a valid CHL to openly carry a handgun Now known as a License to Carry a Handgun (LTC)

Will Open Carry Pose a Danger to the Community? Likely not, based on the experience of other states and Texas’ experience with concealed carry 44 other states have some form of open carry California, Florida, Illinois, New York, South Carolina ban openly carried handguns Many of the same safety concerns raised regarding open carry were raised in 1995 when concealed carry was enacted Those fears were proven to be unfounded In Texas, less than 0.5% of all criminal convictions in 2013 were of CHL holders If a CHL holder who was openly carrying commits a crime, existing laws could be enforced against them, and open carry does not affect their prosecution Oklahoma enacted open carry in 2012 In 2013, Oklahoma saw a 7.3% dip in violent crime

Will Open Carry Pose a Danger to the Community? Thus far, it has turned out to be much less of a problem than was anticipated Reminiscent of the Y2K bug panic Lots of preparation for something that hasn’t caused a problem (so far, at least) “I said before this became law that I thought it was going to be much ado about nothing but I didn’t know it was going to be this much nothing.” – Tarrant County Sheriff Dee Anderson to the Fort Worth Star Telegram, January 16, 2016

Penal Code Provisions Summary 30.06 – Trespass by license holder w/ concealed handgun Notice required; Class A or C 30.07 – Trespass by license holder w/ openly carried handgun 46.02 – Unlawful carrying weapons Defendant carries handgun and is not licensed or refuses to show license; Class A 46.03 – Places weapons prohibited Defendant takes a gun to a specific prohibited place (courts, school premises, etc.), regardless of license; no notice required; 3rd degree felony 46.035 – Unlawful carrying of a handgun by license holder Displays handgun; carries at specific places (church, bar, stadium, hospital, amusement park), while intoxicated, openly carries on any college campus, concealed carries on campus that has opted out; notice required; 3rd degree or Class A

Statistics Show Prosecutions are Relatively Rare Data from Tarrant County between January 1, 2015 – June 15, 2016 30.06 – Trespass by license holder w/ concealed handgun No prosecutions in either 2015 or so far in 2016 30.07 – Trespass by license holder w/ openly carried handgun No prosecutions since law came into effect on January 1, 2016 46.02 – Unlawful carrying weapons 690 misdemeanor prosecutions, 29 felony prosecutions (no differentiation between handguns, illegal knives, or clubs) 46.03 – Places weapons prohibited 18 felony prosecutions (no differentiation between handguns, illegal knives, or clubs) Mainly weapons brought to schools, but sometimes to DFW airport 46.035 – Unlawful carrying of a handgun by license holder 24 misdemeanors, 1 felony (gun at a bar) Most common situation is someone intoxicated carrying a gun, especially DWI with gun in car

New Criminal Offense Trespass by a license holder with openly carried handgun Penal Code § 30.07 Very similar to trespass by concealed handgun license holder in § 30.06 (which was already on the books prior to new laws) Offense occurs if license holder: Openly carries a handgun; and Received notice that entry on the property by a license holder openly carrying was forbidden Class C misdemeanor, unless party receives oral notice and refuses to leave, then it becomes Class A For governmental property, only applies if it is a “prohibited place” mentioned in § 46.03 or § 46.035

Unlawful Carrying By a License Holder, Penal Code § 46.035 Cannot open or concealed carry at any meeting of a governmental entity subject to Open Meetings Act But license holder must still receive notice Cannot open or concealed carry while intoxicated Licensed security officers cannot violate any provision of Chapter 411 of the Government Code Biggest issue is that non-uniformed security officers (such as bodyguards) have to conceal their firearm regardless of whether they are authorized to openly carry under any other law Generally classified as Class A misdemeanors

No Carrying Allowed By License Holders Flat prohibition on license holders carrying firearms under Penal Code § 46.03 at these places: School, educational institution, or any place a school event is being held Exception for concealed carry on some college campuses Courts or offices used by courts Polling places on the day of an election Place TDCJ is conducting an execution on day of execution Secure area of an airport Racetrack High school, collegiate, or professional sporting event building or stadium Nature of event at stadium controls, not the fact it is a stadium Third degree felony Effective August 1, 2016, college stadiums must give notice, but the other stadiums do not

Government Property If a government building does not have a court, a licensed citizen is permitted to carry on that government owned property This includes libraries, city hall, administration buildings, parks, etc. Penal Code § 30.06(e) & 30.07(e) A major exception to this rule is for rooms in government buildings where meetings subject to Texas’ Open Meetings Act are held Cannot carry in those rooms, but must still give notice Penal Code § 46.035(c)

Property Owned By the Government Leased to Private Entity Land or facilities owned or leased by the government are generally places guns cannot be excluded from If the government leases property it owns to a private party, the private party becomes the “owner” for purposes of the Penal Code under § 1.07(a)(35) Example: a hotel built by a private company on land at an airport owned and operated by the government Choice on excluding guns rests with private leasing party Similar to landlord/tenant situation

Concealed Carrying on College Campuses A private college campus can opt out of allowing license holders to concealed carry on their campus The board of regents at public colleges may establish rules regulating the carrying of concealed handguns on campus, but can’t generally prohibit carrying by license holders per Government Code § 411.2031 But the campus must still give notice they are prohibiting concealed carry per Penal Code § 46.035(a-2) & (a-3) Still an offense to open carry on a college campus, regardless of signage

Concealed Carrying on College Campuses Every private university and college in Texas has opted out of allowing campus carry Texas Tribune has compiled a database of each private institution’s policies https://apps.texastribune.org/private-university-campus-carry/ Policies adopted by public institution’s in Texas vary Dallas Morning News has a tracker outlining policies http://interactives.dallasnews.com/2016/campus-carry-tracker/

Concealed Carrying on College Campuses Common places where larger public universities don’t allow concealed carry Disciplinary hearings Research labs that are “high hazard” (i.e., dangerous materials present in lab or could impede psychological testing) Patient care areas in medical facilities Policies for guns in dorms vary wildly form campus to campus Some allow it, some forbid it, and others allow it subject to strict storage requirements or only in certain dorm facilities

Wrongful Exclusion From Government Property If a governmental entity wrongly excludes license holders from carrying somewhere, the citizen has a remedy under Government Code § 411.209 Must first send written notice to the entity and wait three days If not fixed by governmental entity, citizen can alert Attorney General AG then investigates If AG agrees with citizen, governmental entity has 15 days to fix If not fixed after 15 days, AG can sue for both equitable relief and monetary civil penalty ($1,000-$1,500 for first day, $10,000-$10,500 for each day after) Any civil penalty assessed goes to the crime victim compensation fund

“Prohibited Place” Signage Buildings may display a sign with the following language: “Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly” Mirrors language in signage prohibiting concealed carry This signage serves as the required notice under trespass by a license holder and unlawful carrying by a license holder But note that there is no notice requirement under 46.03 for “prohibited places,” such as courts, schools, polling places, and secured area of airports

“Prohibited Place” Signage Individuals and businesses are free to prohibit open carry on private property by displaying the “prohibited place” signage Two different signs are in effect Signage prohibiting concealed carry under Penal Code § 30.06 Signage prohibiting open carry under Penal Code § 30.07 Special 51% sign for certain places that sell alcohol Language of these signs is nearly identical But both signs need to be displayed to prevent all types of carrying on a particular property

“Prohibited Place” Signage

“Prohibited Place” Signage

“Prohibited Place” Signage Signs such as these have no legal effect in Texas

Do We Have To Put Up a Sign? There are three ways to give notice that guns are not allowed A sign that complies with § 30.06/30.07 A card or other document with § 30.06/30.07 language Oral notice by owner or someone with apparent authority to act for the owner For places where notice is not legally required, might be a good idea as a practical matter to put something up, even if they don’t track language of 30.06/30.07

Places Where Notice Is Required to Legally Exclude Guns Private property (§ 30.06/ § 30.07) College campus or where college activity conducted (§ 46.035(a-2), (a-3)) As of August 1, 2016 Bars that make 51% of their revenue from alcohol (§ 46.035(b)(1)) Hospital premises (§ 46.035(b)(4)) Amusement parks (§ 46.035(b)(5)) Note no distinction on property vs. premises here Church, synagogue, or other places of worship’s premises (§ 46.035(b)(6)) Collegiate sporting event premises (§ 46. 035(b)(2), (l)) Open meeting of governmental entity (§ 46.035(c))

No Notice Required to Legally Exclude Guns Premises of school or education institution or grounds where a school sponsored activity is occurring (§ 46.03(a)(1)) Polling place on day of election (§ 46.03(a)(2)) Courts (§ 46.03(a)(3)) Racetrack (§ 46.03(a)(4)) Secured area of airports (§ 46.03(a)(5)) High school or professional sporting event or interscholastic event premises (§ 46.035(b)(2)) Nature of event controls, not the venue Correctional facility premises (§ 46.035(b)(3))

The Hot Button Question Can law enforcement demand to see your license to carry a handgun and arrest you if you refuse to produce it?

The Hot Button Question Three reasons to answer “Yes” Statutory authority under Government Code Case law from federal courts in states with similar open carry laws, plus a big hint from the Court of Criminal Appeals Legislative history of the open carry bill

Statutory Authority to Demand LTC On demand of a peace officer, a carrying citizen must show their driver’s license and LTC Government Code § 411.205 “If a license holder is carrying a handgun on or about the license holder's person 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.” Presumptively illegal to be carrying a handgun Penal Code § 46.02 – Unlawful carry

Officer May Disarm Officers may disarm license holders Government Code § 411.207(a) Peace officer in lawful discharge of their duty may disarm license holder any time the officer reasonably believes it is necessary for protection of license holder, officer, or another person Must return firearm once license holder is discharged from the scene if no arrest of the license holder occurs or if they do not otherwise pose a threat

A Hint From the Court of Criminal Appeals Chiarini v. State, 442 S.W.3d 318 (Tex. Crim. App. 2014) Defendant was openly carrying a handgun in the common area of a condominium complex where he owned a unit; convicted of un lawful carry under § 46.02, but reversed because common area was still his property “It is true that a police officer would need probable cause to arrest someone for violating the [unlawful carry statute], but it is possible that an officer could stop someone and conduct an investigative detention on reasonable suspicion and develop probable cause during that detention.” Consensual encounter, as usual, is permissible for anyone openly carrying

Carrying Without a License If a person is carrying a firearm, either openly or concealed, and they are not able to produce a license on demand, they have committed the offense of unlawful carrying of a weapon under Penal Code § 46.02 New open carry laws do not change this

Carrying Without a License The only times when someone without a license can carry a handgun, either openly or concealed: In their own motor vehicle or watercraft (must be kept out of plain view) Directly en route to their motor vehicle or watercraft On their own premises or premises under their control

“Traditional Open Carry” States Are Different Than Texas Other states with open carry laws don’t allow temporary investigative detentions of citizens who openly carry North Carolina and Ohio are “traditional open carry” states, meaning you have to get a license to concealed carry, but don’t need one to open carry Because of this, NC and Ohio police can’t temporarily detain based on openly carrying alone Texas is different because you need a LTC to open carry, which is why temporary detentions are permissible here Constitutional carry states require no license to carry a handgun at all Seven states, including Arizona and Arkansas

Delaware Has a Similar Law Texas and Delaware’s laws in regards to carrying handguns are similar in that there is a presumption that the handgun is being carried illegally until the license holder produces their LTC Terry stops (temp. investigative detentions) of people carrying firearms have been held permissible in Delaware by federal and state courts United States v. Gatlin, 613 F.3d 374 (3d Cir. 2010) (reasonable suspicion to conduct a Terry stop existed in Delaware case based on reliable tip that defendant had a concealed handgun) Lively v. State, 427 A.2d 882 (Del. 1981) (having a handgun is presumptively illegal; burden is on defendant to establish they have a license to carry)

The Legislature Considered This Issue An amendment was taken out of the final bill that sought to specifically prohibit law enforcement from temporarily detaining citizens openly carrying handguns “A peace officer may not make an investigatory stop or other temporary detention to inquire as to whether a person possesses a handgun license solely because the person is carrying a partially or wholly visible handgun carried in a shoulder or belt holster.” Proposed Government Code § 411.2049 did not make it out of conference Senate and House negotiated in conference to remove the Huffines/Dutton amendment (“Cop-Stop” language) This amendment was a huge point of debate and created unusual inter-party coalitions and intra-party fighting; not a straight Democrat vs. Republican issue Opponents called it a “back door to constitutional carry”

Questions? Don’t be gun-shy