Police across Texas are bracing for a spike in 911 calls when the state’s open carry law takes effect Jan. 1 and panicked citizens start seeing handguns on people’s hips.
“For a while we’ll be in a transition period, but it’s something everyone’s going to have to get used to,” said Lt. Pedro Barineau, a Garland police spokesman.
Police will have to contend with the law’s gray areas that experts say will have to be settled in court. The law is unclear, for example, on when officers can demand to see a gun owner’s license or whether they can arrest people who refuse to show the license.
About 5 percent of Texans 21 and older have handgun licenses. Though the rate is lower in Dallas County — about 3 percent — the county still accounts for nearly 6 percent of active licenses in Texas.
“The law is drafted so simply, it’s really placed a huge burden on the shoulders of law enforcement in Texas to parse through these issues,” said Emily Taylor, an independent program attorney for Force Law Shield, a gun owners’ legal defense group. Taylor trains police on open carry.
Legislators created the new law by taking the word “concealed” out of the state’s concealed carry handgun law and adding that openly carried handguns must be in a belt or shoulder holster.
‘If it’s not broke’
About 75 percent of police chiefs surveyed by the Texas Police Chiefs Association opposed open carry. Sr. Cpl. Fred Frazier, the Dallas Police Association’s political action committee chairman, said many officers believed open carry would be a distraction and cause unnecessary panic. “If it’s not broke, don’t fix it — the concealed carry has worked just fine.”
Meanwhile Taylor, who has conducted dozens of training sessions for police statewide, said officers have many legitimate questions about how to enforce the new law. They want to know whether the holster has to be worn on the person’s body or whether a gun can be holstered but carried in someone’s hand or placed on a table. The law doesn’t specify that the holster needs to be worn on the body.
According to Taylor, an officer is allowed to briefly detain and question someone holding a gun who seems to be doing nothing else wrong. That’s because, under state law, the officer would have reason to suspect the gun owner of committing a crime — unlawfully carrying a handgun without a license.
Even so, several North Texas police officials said they’re training officers to detain and question only people suspected of engaging in a crime.
“The mere fact that somebody’s open carrying is not reasonable suspicion for us to stop and detain them and ask for their license,” said Officer James McLelland, an Irving police spokesman.
But, he added, police could temporarily detain the person and demand a license if he or she was engaged in some type of suspicious behavior, such as being behind a closed business at 2 a.m. or threatening another person.
For officers, the trickier area of the law comes in if a gun owner refuses to show a license. The law provides no penalty for license holders who don’t show their licenses to police. Taylor said case 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?
“That’s the question I’m asked most right now, and it’s a very thin line,” Taylor said. “A lot of this is going to be up to the policy of the county and the district attorney.”
Most issues regarding an officer’s right to detain and arrest in these situations will be determined case by case, said Toby Shook, a criminal defense attorney and former Dallas County prosecutor.
“There’s no clear-cut answer,” Shook said. “It will be litigated by the open carry folks as soon as possible.”
Dallas Police Deputy Chief Jeff Cotner said he largely expects license holders to be law-abiding citizens, as concealed handgun owners have demonstrated themselves to be “over the past 20 years.”
“We’re going to have a measured approach to open carry,” Cotner said. “It’s not a situation where we’re going to fly in there with guns drawn, screaming at people to get on the ground.”
Dallas Area Rapid Transit officials said all employees were trained in the law and were told to call police if they believed an armed person was acting suspiciously. However, an internal DART memo that was posted online last week by Open Carry Texas indicated that police would respond to every gun carrier.
DART spokesman Mark Ball said that memo was poorly worded and didn’t reflect the agency’s actual policy.
“It’s not supposed to be every time,” he said.
Some lawmakers initially wanted to make it illegal for police to stop and question someone openly carrying a gun solely because the person was armed. But that measure was thrown out after police opposed it.
They said it would have hindered officers on the street from being able to enforce the law.
“The provision was like tilting the table against law enforcement,” said Frazier, who’s also the first vice president of the Dallas Police Association. “We have to verify good guys with guns.”
Police must strike a delicate balance between trying to prevent panic and not infringing on gun rights, Frazier said. For example, he said, it’s legal for someone to carry a gun on a crowded city street, but it may not be the “smartest or most common-sense” choice because it could incite fear.
In October, Dallas police urged people not to bring rifles to the Katy Trail after two men walking with fake rifles prompted a flurry of panicked 911 calls from people along the popular exercise path. After several armed robberies on the trail, dozens of open carry advocates demonstrated carrying rifles in November.
Gun owners can’t carry their weapons into the same places that were prohibited under concealed carry, including bars, sports events and high schools. Other places that may ban open carry include hospitals, churches, restaurants and businesses.
Gun owners will be able to openly carry their guns into the lobbies of police stations and other public buildings that aren’t connected to correctional facilities or don’t have meetings happening. They won’t be able to carry guns into restricted areas, such as a detective’s office at police headquarters.
When to worry?
At Dallas City Hall, some are panicked about the thought of armed people coming in and shooting up the place, said spokeswoman Sana Syed.
“People have died across the country, and residents and city employees want to know: When should we be worried?” Syed said. “There is no barometer for knowing which person is in their right mind to have a weapon like that.”
The city attorney is reviewing the laws that dictate which areas of public buildings can be considered restricted to keep employees safe and comfortable, Syed said.
Someone openly carrying may believe the gun sends the message that he’s a “community caretaker,” said Justin Sparks, a criminal defense attorney who represents Dallas-Fort Worth gun owners for Force Law Shield. But, he added, others may see the weapon as a sign that “the person’s crazy for open carrying when they have the option to conceal.”