Updated December 10, 2022.
What happens when an officer demands you surrender your lawfully carried firearm during a routine traffic stop? Do you have to follow their demands? Can the police disarm you? In this article, we will cover both Texas law and what the United States Supreme Court says.
Carrying a Gun in A Car
Carrying a firearm in a car is routine in Texas. Vehicle carry does not require a License to Carry a Handgun (“LTC”). A person may travel with a firearm in their car in the Lone Star State. Yet, during routine traffic stops, many law-abiding citizens find themselves subject to the demands of a police officer. If that officer asks the driver to disarm, what should they do? The Texas Legislature has addressed this very question.
Disarmament with an LTC
For license holders, the Government Code says police officers may disarm an LTC holder if the officer reasonably believes it is necessary to secure the firearm for the protection of the officer or any other individual.
Disarmament without an LTC (Constitutional Carry)
For non-license holders, the Code of Criminal Procedure says police officers may disarm a person if the officer reasonably believes it is necessary to secure the firearm for the protection of the officer or any other individual.
Additional Authority to disarm
The U.S. Supreme Court in United States v. Robinson3 stated:
“[P]ersons who are armed, whether legally or illegally, pose yet a greater safety risk to police officers.”
The Court went on to justify disarmament based on “officer safety.”
Texas Court of Appeals have reaffirmed the power to disarm4.
Ordinary Traffic Stop
In most instances, police will ask you not to reach in the area where the firearm is located and continue with the traffic stop without incident. In others, they may ask you to step out of the vehicle and retrieve the firearm themselves.
Returning the gun
After the encounter, if the officer determines that the individual is not a threat and has not committed a crime, then the police officer must return the firearm. However, the Government Code and the Code of Criminal Procedure do not specify how. Additionally, the law does not detail how long police may hold onto the gun.
Extraordinary traffic stop
In the most severe circumstances, we’ve seen police take guns back to their department, for “safekeeping.” In that case, you may need the assistance of an attorney.
This type of seizure violates the Fourth Amendment and is contrary to the Texas Government Code.
How far can this disarmament go?
The government would likely argue they can search a vehicle if they suspect or know there is a gun present. During a traffic stop, if an officer is told there is a gun in the vehicle, even if no crime is suspected, under the pretext of officer safety, the officer could search an entire vehicle. If a firearm is discovered during the search, the police could hold it temporarily. This is, in our opinion, an unreasonable search and seizure.
Get your gun back from the Police
If your gun was seized, we can help. The attorneys at Walker & Taylor have successfully obtained the return of hundreds of guns. Contact us today, and let us get to work getting your gun back from the police
Law-Abiding Gun Owners
The disarmament of LTC holders is surprising considering that LTC holders, as a group, commit fewer crimes than non-LTC holders.
The Department of Public Safety tracks statics on license holders. These statistics are available on the Department’s website. Despite the flawed logic, Texas courts have adopted the same: officers can and will disarm law-abiding citizens during a traffic stop.
What you need to know
During encounters with police, they may temporarily disarm you. If you are not charged with a crime, absent extenuating circumstances, they should return your firearm at the end of the encounter. If you believe your firearm was seized unlawfully, the place to fight that wrongful confiscation is the courtroom, not during the traffic stop.
Author: Richard D. Hayes, II