On 27 February, 2016, Brett Sanders was arrested while openly carrying a firearm in Texas. He had refused to show the officers of the Southlake, Texas, Police Department, any identification or a Texas carry permit. Brett Sanders is an open carry and liberty activist.
The legal ability of Texas police officers to demand to see a carry permit of people openly carrying firearms, was hotly debated during the passage of the law that restored the right to openly carry modern pistols in Texas.
A clause stating that officers could not demand a permit without probable cause was removed during the debate. Some legislators claimed the clause was redundant; that it was already settled law that the police could not demand a permit without probable cause. Others claimed that police could demand to see a permit for anyone openly carrying. The issue was not resolved in the legislation.
Brett Sanders appears to be one of the first arrested for refusing to show a permit while openly carrying a modern handgun under the new law. There may be others that I have not heard of.
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The response from the group of activists to Sanders case was so quick and effective, that it delayed an attorney from getting Sanders out on bail for a few minutes. From brettsanders.me:
Thanks to Cell411, I was able to livestream my location and video of the entire arrest which mobilized a massive outpouring of support and angry calls to the jail where I was being caged. So many calls were pouring in that it actually delayed my lawyers efforts to bail me out –well worth it in my opinion. Nonetheless, a friend of liberty and lawyer Alex Kim was able to coordinate my bond without any communication from me. I only spent two hours in a cage as a result.
Texas Law Shield took Brett Sanders case. He is one of their members. Sanders says that he does not have a Texas carry permit, but a few days ago, all charges against him were dismissed. Sanders was willing to make this a test case of whether police could demand to see a carry permit, without probable cause to do so. The prosecutor likely did not want this to be the test case.
I suspect this will be the trend in future cases. If there are no circumstances that would combine with the open carry of a firearm to create probable cause, there is no probable cause.
Wisconsin Attorney General J. B. Van Hollen ruled that open carry was not disorderly conduct, and that police could not stop people who were openly carrying without some other factor being present. That ruling was in 2009, before the shall issue Wisconsin law was passed. From jsonline.com:
His advisory was most clear on that point. “The Department (of Justice) believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge,” the Republican attorney general wrote in the memo.
Other states have followed Wisconsin’s lead, clearly stating that the mere open carry of a firearm is not disorderly conduct.
There are differences. Open carry was always legal in Wisconsin, even if the police in metropolitan areas had effectively banned it by charging open carriers with disorderly conduct.
In Texas, the open carry of a modern pistol was made illegal during Reconstruction in 1869. I suspect the Wisconsin interpretation will eventually triumph in Texas.
©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.