Texas House of RepsWhile HB 910, the Texas open carry bill, is certainly not dead, it’s future was placed into uncertainty by a bit of maneuvering on what has been called the “Dutton Amendment”, which would prohibit police from stopping someone openly carrying a handgun to ask for their permit.

As a general rule, police must have reasonable suspicion that a crime has been committed before they are allowed to detain someone and ask questions.  For example, police cannot pull you over in your vehicle for the sole purpose of determining whether you are licensed to drive.

The problem, however, is that this requirement of “reasonable suspicion” gets a little fuzzy in certain circumstances.  For example, in 1990 the U.S. Supreme Court ruled in Michigan v. Sitz that the state as a “substantial government interest” in stopping drunk drivers that outweighed the “negligible” privacy invasion caused by setting up checkpoints that resulted in all drivers on a particular road being stopped.  Texas legislatures, obviously concerned that courts could one day find random stops of openly carrying citizens to be constitutional under this balancing test, determined that it was necessary to explicitly prohibit such stops.  Hence, the following language was inserted into HB 910 by Rep. Harold Dutton:

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.

Despite the fact that this language has already passed in the House and Senate more or less intact once, some minor changes in the Senate required concurrence in the House in order to send the bill to Gov. Abbott for his signature.  Instead, some very vocal law enforcement groups took the opportunity to call the amendment into question:

If the provision stays on the bill, the only responsible thing for Abbott to do would be to veto it, Austin Police Chief Art Acevedo said at an impromptu news conference organized as the legislation faces what could be a final vote in the House on Wednesday. “You can’t be the party of law and order and not listen to your police chiefs,” he said.

At issue is language added to House Bill 910, the bill allowing licensed Texans to openly carry handguns, that limits the power of law enforcement to ask those visibly carrying to present their permits. Opponents say that provision amounts to a backdoor effort to repeal licensing requirements for handgun-toting Texans altogether.

The provision has support from some Democrats who say it would help prevent racial profiling, as well as conservatives who say it is necessary to protect Fourth Amendment rights against unreasonable searches and seizures.

Flanked by about a dozen law enforcement leaders from around the state, Acevedo said Wednesday that the legislation would “handcuff” police officers, endangering both them and the communities they protect.

“It absolutely allows criminals to carry a gun with impunity,” he said.

Stripping the language from the measure at this stage in the legislative process would have to happen in conference committee, meaning House lawmakers would have to refuse to concur with Senate amendments to the bill.

I fail to understand how a provision of a bill that essentially reflects current case law would “allow criminals to carry a gun with impunity”.  It would seem to me that if there is reasonable suspicion that someone is breaking the law, police would have sufficient tools available to handle the situation.  Instead, what Chief Acevedo is essentially telling us that he believes police need to have the option to detain someone solely because they’re openly carrying a firearm.

That’s deeply troubling, as that strikes me as an unconstitutional detention.  If someone was driving a vehicle, law enforcement officers do not have the right to pull that person over solely for the purpose of determining whether they have a driver’s license.  Certainly if someone is openly carrying and they’re otherwise reasonably suspected of committing a crime, such an inquiry would not only be allowed, but expected.

Yet, as the article above notes, House members need to refuse to concur to do anything about the provision.  And that’s precisely what they did.  It will be interesting to see whether the conference conference will be successful at hashing out a solution before the regular session expires at Midnight on Sunday.

Written by Bobby Warren