Who wrote that?

There’s a really big problem with Texas’s new gun law

Bill Pugliano

Texas is starting off the new year with a bang: A statewide gun law that doesn’t make much sense.

“Unfortunately, this law was not written very well. It’s not very clear…I can read it one way, I can read it another way,” said Donna Edmundson, the city attorney for Houston, at a town hall meeting two months ago. The law—which will make Texas the 45th and largest state to allow citizens with permits to openly carry handguns—goes into effect on January 1.

But by the end of that hour-and-a-half session, which was also attended by the police chief and district attorney, very little had been resolved.

Now, as they anticipate anticipate an uptick in 911 calls reporting people walking the streets with guns, police departments across the state are still trying to figure out how—and if—they can enforce the law, which legal experts say is marked with gaping loopholes and ambiguities.

For one thing, legal experts say, it’s not clear if the law allows police to detain someone who they suspect is open carrying without a license. Some districts are training police to ask to see a license only if an individual is engaging in otherwise suspicious activity. Others say they are free to ask because there is reasonable suspicion that the person may be committing a crime—unlawfully carrying a gun without a license.

AUSTIN, TX - DECEMBER 12: Gun activists march close to The University of Texas campus December 12, 2015 in Austin, Texas. In addition to the event put on by DontComply.com, a gun activist organization, the group also held an open carry walk earlier in the day.  (Photo by Drew Anthony Smith/Getty Images)Getty Images

Gun activists marched near The University of Texas campus in Austin this month.

Even trickier for police officers is what happens when a citizen is asked and refuses to show proof of an open-carry license. According to the Dallas Morning News, there is no penalty in the law for license holders who refuse to do so:

[C]ase law in Texas could prohibit police from arresting that person, since the action has no penalty.

But if the person isn’t a license holder, the officer can arrest him for unlawfully carrying a gun. So at what point does an officer know enough — like the person’s identity and whether he’s a license holder — to determine whether to make an arrest?

In other words, as it is written, the new open carry law is nearly impossible to enforce, said Geoffrey Corn, a professor of law at the South Texas College of Law in Houston. “It’s kind of like a Catch-22,” he told Fusion. Carrying without a license is illegal, but there’s no clear way for police to investigate if the person does indeed have a license to open carry or not.

“The way it’s gonna end up is that police are gonna have encounters with people who are open carrying that are going to escalate, and that are going to lead to an arrest,” Corn said. “And then that’s going to lead to defense attorneys saying the whole thing was tainted, and that the seizure was illegal because he had right to carry.”

Originally, the bill had a “no stop” provision, which barred police from asking anyone for their open carry license. Law enforcement groups fought it, saying it would prevent police from doing their jobs, while endangering the public. In response to that pressure, the bill was rewritten in its current form.

“Traditionally, the way legislatures tackle hard problems is to leave it to the courts,” George Dix, a professor of law at the University of Texas School of Law, told Fusion. “In this case, I suspect there was no politically acceptable language they could agree on, so they left it up to others to decide.”

The officials who pushed the bill through saw it as mostly a symbolic measure, he speculated. They weren’t necessarily concerned with how it would be enforced.

A request for comment from Texas Gov. Greg Abbott’s office regarding the bill was not returned by the time of publication. In a press conference earlier this year, the governor said: “I will sign whatever legislation reaches my desk that expands Second Amendment rights in Texas.”

For all its problems, there is one thing abundantly clear with the new law: seeing someone on the street with a gun is not enough of a reason to detain them and ask for their license. Seeing someone with a firearm no longer makes them suspicious in the eyes of the law, even as regular citizens might be alarmed at the sight.

“What a lot of police are worried about is not that there’s gonna be open carry, but that there’s going to be a deliberate effort to exercise that right in what I might characterize as an ‘unusually zealous’ way,” said Corn. “And there can be a lot of chaos in those circumstances.”

What happens when an officer arrives on a scene of a shooting and observes multiple people with guns on their waists? he asked. How would an officer differentiate a suspect from a civilian? How do you control a crime scene when everyone has a weapon, and is convinced that they have a right to use it? At what point when detaining someone for a different crime altogether is an officer allowed to remove the suspect’s weapon?

None of these questions is addressed in the language of the law.

“We’ve changed things here a lot and we’ve not thought this through,” Charley Wilkison, executive director of the Combined Law Enforcement Associations of Texas, the state’s largest law enforcement officers’ union, told The Associated Press about the new law’s shortcomings.

“People will drive without a license, and we can sure count on them to carry a weapon without training or license,” he said.

One of Wilkinson’s peers commented on how departments will likely respond to the expected spike in 911 calls reporting people with guns walking the streets.

“The call-taker will say it’s now legal to do that,” Andy Michael, the Austin Police Department training commander, told the AP. “We’re going to assume they’re a license holder, probably.”

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