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prevents[/b] them from posting the sign, it is just unenforceable.
Cheers! M2
I honestly dont disagree with much of what you have said. I am on the side of gun rights. So please dont take this at "nitpicking" it is just being informative.
...but the sign IS enforceable. Someone very well could suffer an enforcement action and there is nothing they can do about it. If they try and do something they could be subject to force and the legal consequences of other laws.
It is only after the fact that all the arguments about the legality of the sign would become an issue in the (pre) prosecution phase of a criminal event.
I would also like to point out, contrary to popular belief, even if you sue and win an action against a political subdivision because the signs and an enforcement turns out to have been illegal, given the nature of the issue and the amount of "loss" you could prove it is highly unlikely that you would win much. It simply would not be the payday people think it would be. The officers would have immunity because there were enforecing a law without being capricious, a law that has not been struck down. If it could be shown that the law was passed without being capricious as well, the city really wouldnt have a level of negligence. The City would (as I have been saying) make this an issue using other parts of the law. This isnt a "slam dunk" case.
Thus, your suit for your "loss" (denied a right and arrest) *could* lead to a change but again, chances are low you would receive any damages. This is not the same thing as an Officer deciding to arrest people with brown hair. This is about creating standing so you can get a court to do something.
Think about the DC vs. Heller case. The courts found the DC law unconstitutional but Heller didnt get a pay day. In the case of San Antonio airport signs, the issue of constitutionality isnt even in play. It is a much lower level.
I honestly dont disagree with much of what you have said. I am on the side of gun rights. So please dont take this at "nitpicking" it is just being informative.
...but the sign IS enforceable. Someone very well could suffer an enforcement action and there is nothing they can do about it. If they try and do something they could be subject to force and the legal consequences of other laws.
It is only after the fact that all the arguments about the legality of the sign would become an issue in the (pre) prosecution phase of a criminal event.
I would also like to point out, contrary to popular belief, even if you sue and win an action against a political subdivision because the signs and an enforcement turns out to have been illegal, given the nature of the issue and the amount of "loss" you could prove it is highly unlikely that you would win much. It simply would not be the payday people think it would be. The officers would have immunity because there were enforecing a law without being capricious, a law that has not been struck down. If it could be shown that the law was passed without being capricious as well, the city really wouldnt have a level of negligence. The City would (as I have been saying) make this an issue using other parts of the law. This isnt a "slam dunk" case.
Thus, your suit for your "loss" (denied a right and arrest) *could* lead to a change but again, chances are low you would receive any damages. This is not the same thing as an Officer deciding to arrest people with brown hair. This is about creating standing so you can get a court to do something.
Think about the DC vs. Heller case. The courts found the DC law unconstitutional but Heller didnt get a pay day. In the case of San Antonio airport signs, the issue of constitutionality isnt even in play. It is a much lower level.
That's your opinion and you're entitled to it, but it goes a lot further than the simple fact there is a sign posted. Two state laws are what make it illegal, and that is what would give anyone that is being falsely charged a liable defense. I've posted both sections of the Penal Code that support this fact, but it will all come down to the first time this is brought forth before a court; which I doubt we'll ever see as the city knows the mess that will cause if they tried it. They luck out in the fact that if a person is conceal carrying in the airport, there is little chance that it will be detected (the entire point of concealed carry). Even if someone where to accidentally display there, I doubt it would result in an arrest as: 1) contrary to belief, the accidental display of a firearm is not a violation of the Texas Penal Code and 2) any effort to enforce the illegal 30.06 sign would not go well for the city. I doubt such an incident would ever go before a criminal court, but I am sure the cost of a person defending themselves would end up a civil matter.
But neither of us will be proven correct until if/when this is brought before a court. We just have a differing opinion of how it would play out, but I for one do not see the city being able to enforce a law that violates state law.
The place where I work says that firearms are prohibited on the grounds but doesn't fall under any of the places listed under the laws you posted.
Does that mean if I was possessing a CHL, I can carry a gun into work?
Edit: I found this online.
"As of September 1, 2011, employers that own parking lots/garages may no longer ban employees from storing firearms in their vehicles on their property. This pertains to BOTH CHL and non-CHL holders. "
Any private business can post 30.06 signs to inform CHL holders that the carry of concealed handguns on the property is not allowed. That sign has the meet certain criteria defined in that section of the Texas Penal Code. Failure to abide by it is considered criminal trespass (a Class A misdemeanor).
It is a completely different situation with public property, such as the San Antonio airport (which is owned by the city). Under state law, unless it falls under the Texas Penal Code as a prohibited place, it cannot be one.
Given that Texas allows its citizens to carry concealed weapons in their vehicles without a permit (as long as they are eligible to do so), the new law states that businesses cannot prevent their employees from having and leaving their handguns in their vehicles. Prior to that, a business owner could post a 30.06 sign in the parking lot and employees would have to comply.
Of course, all this does not apply to Federal property. Under Title 18 U.S.C. §930, "whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both." 'Facility' is further defined as "a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties," which means military bases themselves (the real estate) are not governed by this restrictions. On most bases, it is the commander's policy to prohibit privately-owned firearms from being brought on the installation.
There is some debate as to whether US Post Offices also fall under 18 USC §930, but as I read that section I am of the belief that they do.
That's your opinion and you're entitled to it, but it goes a lot further than the simple fact there is a sign posted. Two state laws are what make it illegal, and that is what would give anyone that is being falsely charged a liable defense. I've posted both sections of the Penal Code that support this fact, but it will all come down to the first time this is brought forth before a court; which I doubt we'll ever see as the city knows the mess that will cause if they tried it. They luck out in the fact that if a person is conceal carrying in the airport, there is little chance that it will be detected (the entire point of concealed carry). Even if someone where to accidentally display there, I doubt it would result in an arrest as: 1) contrary to belief, the accidental display of a firearm is not a violation of the Texas Penal Code and 2) any effort to enforce the illegal 30.06 sign would not go well for the city. I doubt such an incident would ever go before a criminal court, but I am sure the cost of a person defending themselves would end up a civil matter.
But neither of us will be proven correct until if/when this is brought before a court. We just have a differing opinion of how it would play out, but I for one do not see the city being able to enforce a law that violates state law.
Major, again, if an officer arrests you for it, that law has been enforced. It is that simple. What happens after that is somethings else. That is the point I am trying to get across. The City doesnt enforce laws, Peace Officers do. Courts then decided if that enforcement action will stick or not. That is not an opinion. That is a fact. A fact people need to know. You say it is unenforcable, it is not. If you get arrested for it, it was enforced. THEN, other things might happen.
Dont confuse enforcement and the things that follow. There is an expression "you can beat the rap but you cant beat the ride" Which is true. The "ride" is enforcement and in reality, there is nothing you can do to avoid enforcement. The side of the road (or anywhere you encounter LEO) is not a courtroom. The courtroom is where you can, and people often do, beat the rap.
I dont know how many ways I can say this. No mtter how much you want to think they "cant' enforce the law...they certainly can. How are you going to stop them? It is only AFTER the law has been enforced that you can plead your case and I state again, for whatever reason you think "it would not go well for the city", what exactly do you think would happen to them? (I have covered this fairly well already)
As for "contrary to belief, the accidental display of a firearm is not a violation of the Texas Penal Code" you need to be very careful with this as well. If someone can tell you have a gun on you, even if they cant see it, it is a good way to catch a disorderly conduct charge. Yes, I have read the law and here is another case of "tell it to the Judge" in a lot of cases. No matter what you think the law says, no matter how you feel about it, you very well can catch the charge. Even if you "get away with it" or for that matter where right. You cant do anything about it other than put it behind you. It cost you time, it cost you money. If the Officer can articulate PC (which as always isnt the same thing as being right) then he is immune. If someone sees your gun or can see an outline of it, that is alarm and you should know. Not all officers will see it that way, but some will and it can stick. Be careful, be warned.
Police officers enforce the law, but they don't determine what's enforceable. If the Legislature has written a law or a judge has decided that something is not enforceable and a police officer arrests you for it, that police officer just violated your rights. If you win a lawsuit because you were wrongly arrested, that means that the police officer enforced something that is not enforceable.
Police officers enforce the law, but they don't determine what's enforceable. If the Legislature has written a law or a judge has decided that something is not enforceable and a police officer arrests you for it, that police officer just violated your rights. If you win a lawsuit because you were wrongly arrested, that means that the police officer enforced something that is not enforceable.
...and that is not what we are talking about here at all.
As everyone is so quick to point out, there exists no (or we dont think there does) any case law on this case.
It wouldnt be "wrongful" arrest. I have already gone through all the reasons with pretty fair detail. It could very well be UPHELD that the law/sign/ordinance was not legal but that doesnt mean the arrest was illegal. They are not the same thing. You beat the rap...but you didnt beat the ride and the ride was legal. One more time....it cost you time and money but there is no payday at the end of the rainbow and this is probably the BEST result if things go your way. They usually dont.
I dont know why people want to make this so complicated. If I am SAPD or Airport Police and you have a CHL and are caught with a firearm past the 30.06 sign...You are subject to arrest. (that is enforcement) There is nothing you can do about that. You are going to jail.
AFTER that, you can plead your case. And folks, that may very well not be easy. For whatever reason, it seems like some of you think you show up, open the book and say, "Judge, look here, you have to let me go"...then you sue and win. Yes a touch of hyperbole, but it gets the point across.
Here is the problem with that. The city (can) shows up with lots of Lawyers and says "wait, not so fast." See...the city gets to plead its case as well. Now you have a fight on your hands. That is going to cost you time and money.
You may very well win. Hell, I personally think you are right...but that doesnt change how the system works and if you want to play with fire, you might get burned and all I am trying to do is tell people that and WHY that is.
Anyways folks, if you see it another way, good luck with that.
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