TX State Law Library Only CC Guide - Flipbook - Page 19
CAN THE POLICE STOP AND DISARM
ME BECAUSE I’M CARRYING?
What Are Your Rights?
With the passage of the Firearm Carry Act of 2021 came a new provision of law; Article 14.03(h)(1),
(2), and (3), effective September 1st, 2021, of the Code of Criminal Procedure. This article, at its core,
discusses when a peace officer may disarm a person. It is modeled after existing Government Code
Section 411.206, which applies to license holders. This was considered one of the most controversial
sections of the Act and was the cause of much debate. On top of that, another section that would have
expressly prohibited the police from disarming a person without reasonable suspicion was intentionally
removed.
You may be asking yourself: “Can the police just stop and disarm me because I’m carrying a handgun
under the authority of the Act?” Well, that depends on how the courts will interpret “A peace officer
who is acting in the lawful discharge of the officer’s official duties may disarm a person at any time
the officer reasonably believes it is necessary for the protection of the person, officer, or another
individual.”
We hope a court would conclude that the seizure of a firearm would constitute a detention and that
detention would need to be based on reasonable suspicion of some criminal offense. But until this
provision is interpreted, we will have to wait and see. That being said, the place to fight an unlawful
detention or arrest is in a courtroom. If you find yourself in an encounter with police, stay calm, be
courteous, follow the officer’s directions, and use common sense (including not waiving any of your
legal rights without speaking to an attorney).
Here is a quick overview of the three primary types of police encounters.
Voluntary Encounter (right to walk away): The police may approach any person in a public place and
engage them in ordinary conversation just like any other individual. A person who finds themselves in
a voluntary encounter with the police is fully within their right to not engage in conversation and walk
away.
Temporary Detention (requires reasonable suspicion): A temporary detention occurs when a police
officer stops and holds a person, restricting their right to walk away. A police officer is legally justified
in conducting a temporary detention when the officer has “reasonable suspicion” based on specific
articulable facts that a person has broken, is breaking, or will break the law. While lawfully detained, a
police officer may check arrest warrants, frisk the outside of clothing, remove weapons, or handcuff and
place a person in the back of a squad car.
Arrest (requires probable cause): Police may arrest a person if they have probable cause to believe
a crime has been or is being committed. In Texas, a formal arrest occurs when someone is placed
into custody in a manner such that a reasonable person would believe they have been deprived of
their freedom. At the point of arrest, most of the person’s legal rights and protections are triggered
(including the right to remain silent, the right to counsel, etc.).
Legal Tip: Identification only needs to be provided if a suspect has been arrested.
Remember: Don’t waive your rights without talking to your lawyer!
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TEXAS CONSTITUTIONAL CARRY GUIDE 2022
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