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Comment: UPDATE: Commentary from a friend who knows about this stuff...

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UPDATE: Commentary from a friend who knows about this stuff...

Several people have commented that "manner calculated to cause alarm" isn't defined, or that LEOs are choosing a definition that suits them, and we need case law. However, something Gary Hays said last night when his arrest started got me thinking and doing some research today, and I think there's a fundamental piece we've been missing here.

The cop told Gary that his pistol "was alarming" him (which is obviously different from "calculated to cause alarm", but nevermind that for now). Gary immediately replied that the cop's visible sidearm, mace, nightstick, etc. were alarming him. Something we've all thought and said before, but it got me thinking about what the code says...

As we all know, Penal Code Chapter 46 is the one dealing with weapons. 46.02 lists places a person can't carry a handgun. 46.03 lists places a person can't carry a firearm or other prohibited weapon.

The thing is, those sections apply to ALL people, including license holders AND LEOs. So why can they each carry? Because there are exceptions later in that Chapter: Sec. 46.15. NONAPPLICABILITY. 46.15(a) says both 46.02 and 46.03 do not apply to various types of peace officers, while in the commission of their duty or otherwise (different types of LEOs get different exceptions). 46.15(b)(6) carves out the exception to carry a concealed handgun if you're a CHL holder.

Obviously our guys are getting arrested and charged not under Chapter 46, but under Chapter 42, Disorderly Conduct. Specifically, 42.01 "(a) A person commits an offense if he intentionally or knowingly: (8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;".

There is no NONAPPLICABILITY exception for LEOs I can find for 42.01, or any of Chapter 42. That should mean that if simply carrying a weapon openly counts as "manner calculated to cause alarm" for the purposes of 42.01, then every LEO that's openly carrying is also in violation. Obviously selective enforcement is no new thing, but that should make it clear in any court proceeding that using brandishing as the standard is the only reasonable way to read the law.

This shouldn't be that surprising if we consider what "disorderly conduct" is supposed to be about. There's no particular reason to think an LEO would be exempt from laws against disruptive noise, showing their genitals, etc. that the rest of Chapter 42 deals with.

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