When Can the Police Ask to See An Open Carry License in Texas?

The Texas Open Carry law goes into effect January 1, 2016 and it will be interesting to see how law enforcement handles encounters with citizens carrying firearms in the open. Many law enforcement agencies have been training their officers for these encounters and some departments have released videos to the public in order to be better educated.

The critical issue will be when police have enough probable cause to request a person with a gun to produce his open carry license. As happens so often in criminal law, there is no clear cut answer. An officer can ask to see any citizen to see his open carry license and if the citizen voluntarily consents there is no problem. It’s when the citizens says “No Thanks” to the officers request that things get interesting.

Since the law allows citizens to open carry the fact that a citizen is armed will not give an officer probable cause to ask to see a license. The officers may be able to develop probable cause if they have reasonable suspicion that the citizen may be committing some type of crime. A person isn’t allowed to open carry if they are engaged in some sort of criminal activity that is greater than a Class C Misdemeanor.

There will have to be additional facts which will give an officer sufficient probable cause to detain, investigate and search a citizen.

What could these facts be? Here are some examples.

  1. Intoxication. If a citizen appears to be intoxicated he can’t be legally armed. If an officer observes facts which lead him to believe the citizen is intoxicated then he would probably have grounds to detain and search further.
  2. Mental illness. If a person is acting irrational or appears to be suffering from some mental defect and officer would be able to detain and search further.
  3. Suspicion of criminal activity. If the citizen is acting in a way which would lead an officer to believe that the person is involved in some type of criminal activity then the officer could detain and investigate further. This will be a hotly contested area. A criminal lawyer will challenge the facts known to the officer in order to determine if there really was suspicious behavior.

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