Can an Officer Disarm Me?
What happens when an officer demands you surrender your lawfully carried firearm during a routine traffic stop? Are they allowed to disarm you? Do you have to follow their demands?
Many law-abiding gun owners carry firearms in their vehicles in Texas; you're not required to have a License to Carry a Handgun ("LTC") to travel with a firearm in your motor vehicle 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. Texas Government Code § 411.207 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. 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 does not detail how the gun must be returned, or how long police may hold onto it.
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. In the most severe circumstances, we've seen police take the gun back to their department; only to release it after being booked into evidence and test fired for "safety purposes." This type of seizure violates the Fourth Amendment and is contrary to the Texas Government Code. In response, we have spent considerable time working to return citizens' firearms when they were unlawfully seized by various agencies throughout the State of Texas.
Another blow to gun-owner rights came in the U.S. Court of Appeals for the Fourth Circuit opinion in United States v. Robinson. The court stated, "persons who are armed, whether legally or illegally, pose yet a greater safety risk to police officers." The Texas Court of Appeals in Fort Worth, in Lovett v. State, acknowledged the holding in Robinson and re-affirmed that the Texas Government Code allows an officer to disarm an LTC holder. This is especially surprising considering that LTC holders, as a group, commit fewer crimes than non-LTC holders. These statistics are tracked by the Department of Public Safety and they are available on the Department's website. Despite the flawed logic, the Fourth Circuit's holding stands, and Texas courts have adopted the same: officers can and will disarm law-abiding citizens during a traffic stop.
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, yet because of court opinions like Robinson, these practices are commonplace.
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: Curtis Reynolds
DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.