A Brief Overview of Expandable Batons
Expandable batons, also known as telescopic batons or collapsible batons, are extendable steel batons used by law enforcement and the military for self-protection. They take the form of a rod made of steel or other metal that is between 15 and 26 inches long when fully extended, and extends to between 4 and 9.5 inches in its retracted state. They are easily transported at all times. They are held closed by a spring system, so that repeated pressure on one end opens and closes it.
When expanded, they are a powerful self-defense weapon that can be used to strike someone and inflict serious injury if necessary. However, expandables are often used as a physical companion to law and order. Police and military officers use expandable batons to keep order and control without carrying guns. Unlike guns , which are easy to access upon their person, expandable batons can remain concealed without effort until they are needed.
Depending on the situation, they may be used as a defensive weapon or to control civilian populations that are being aggressive or disobedient. Because of the popularity of telescoping batons among police, that have begun filtering into the general population in Texas as well. In some cases, for example, civilians may want an expandable baton as a form of self-protection. In other cases, civilians may want a telescopic baton to self-investigate issues, especially with regard to blind or otherwise hard to reach access points. Using a telescoping baton, they can open a vantage point from a distance without putting themselves at risk.
Texas Law Regarding Self-Defense Weapons
Like many states, Texas has laws allowing individuals to carry weapons for self-defense purposes. Texas allows people to carry a handgun on their person for this purpose, as well as knives, batons, and other weapons under certain circumstances. The history of the law on weapons in Texas is rather long and complex, but this section will provide a brief overview of the most important aspects of these laws – specifically what the laws say about carrying batons, expandable or telescoping batons, batons that open using a button or switch mechanism, and collapsible batons. Originally, Chapter 46 of the Texas Penal Code only allowed knives to be carried for self-defense purposes. However, in 1989, knives were added to the list of weapons not allowed under Chapter 46. This section of the Texas Penal Code was titled the Deadly Weapon statute. A wide variety of other weapons were prohibited under the Deadly Weapon provisions. In 1997, the Texas Legislature changed the law regarding carrying weapons for self-defense purposes. Using language previously used in a related statute, Chapter 46.01, it indicated that people would be able to carry "a club." However, it specified that this law would not apply to clubs with metallic or non-metallic knuckles. The law also stated that it would not apply to sticks. However, this law did not define a stick. While many other weapons are prohibited under the Texas law, there are several that fall into the category of clubs. The statute does not actually use the word "baton," which can cause confusion. Clubs include the type of blunt weapons that can be used for close ranges. Bats, extensions of an arm, sticks, rods, and the like are all broadly categorized as clubs. This leaves open the question of whether telescoping or expandable batons, filled batons, or button/stick opening batons fall within the category of clubs. Since 1997, there has been a great deal of confusion regarding the carrying of baton weapons for self-defense purposes. Although courts have examined whether collapsible batons fall within the definition of a longer club or a firearm, it is unclear whether batons of any type can be lawfully carried for self-defense purposes in the Lone Star State.
Status of Expandable Batons in Texas
The legal status of expandable batons in Texas has recently become somewhat more complicated. The reason is that, in September 2015, the Texas legislature amended Texas Penal Code Section 38.01, which outlines the full range of conduct that constitutes an offense of "prohibited weapons," including one or more specific objects that are categorized as prohibited weapons. Prior to the September 2015 amendment, organic matter, especially wood, was generally considered the only approved form of expandable baton. Under the old Section 38.01, only a "nightstick or club" made of "organic substance," such as a straight wooden stick or "blackjack" with a wooden handle, was an allowed expandable baton. The recent legislative change, however, broadened the definition of "nightstick or club" to include "any other device designed, made, or adapted for the purpose of inflicting death or serious bodily injury by striking someone with the device." In short, the change in the law made any expandable baton—well, expandable.
By way of background, a "nightstick" or "club" as currently defined by Penal Code Section 38.01 is:
Any instrument for the purpose of offense under this chapter made of the following materials and designed for use as a blunt weapon capable of inflicting serious bodily injury or death: (A) rubber or another substance with similar characteristics; (B) a rigid head with a flexible handle attached to it; (C) a straight or side-handled polycarbonate or other synthetic material; (D) a straight, side-handled, or compact telescopic metal; or (E) any other device designed, made, or adapted for the purpose of inflicting death or serious bodily injury by striking someone with the device.
The statutory change also excluded collapsible batons from the category of prohibited weapons. This was due to the simultaneous repeal of Penal Code Section 46.02, "Unlawful Carrying of a Weapon." The effects of this change can be best observed in the language of the new Section 46.02.
Proposed Legislation
To counter this legislative change, Senator Bob Hall submitted Senate Bill 155 in January 2017. In response, the bill was reported favorably, without amendments, by the Committee on State Affairs and considered in a public hearing where there was no objection. The bill did not reach the senate floor by the end of the legislative session, however.
Penal Code Section 46.02(k-3) now reads:
(k-3) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person an expandable baton unless the person is:
(A) a peace officer, as that term is defined by Section 51.212, Family Code;
(B) a retired peace officer;
(C) a member of the Texas Army, Texas Air, Texas State, or any other branch of the Texas military forces;
(D) a member of the United States Army, United States Air Force, United States Navy, United States Marine Corps, U.S. Coast Guard, or any reserve force of the United States Army, United States Air Force, United States Navy, United States Marine Corps, U.S. Coast Guard, or Coast Guard Reserve;
(E) a municipal animal control officer; or
(F) a commissioned security officer who holds a security officer commission issued by the Texas Commission on Law Enforcement under Chapter 1701 who is actively engaged in the performance of the officer’s duties.
Notice how "person" changed to "a person:" this seems to indicate that the law applies to people using expandable batons as well as carrying them. Also notice that it doesn’t specify how many people will need to carry a baton before it becomes an "invasive procedure;" in other words, during what point it will technically become a "gang."
Penal Code Section 46.01(10), however, has a definition of "expandable baton," which it defines as:
"Expandable baton" means a telescopic police baton of two or more sections that is folded to a length of 12 inches or less and then opened to a length of 21 to 26 inches.
Legal Consequences of Possessing an Illegal Baton
In Texas, the carrying of expandable batons is prohibited by law. The legal ramifications for possessing an expandable baton can be found in Texas Penal Code § 46.01(11) and § 46.05(g), which state that if an individual carries a club (i.e. expandable baton) with the intent to use the club as a deadly weapon, then the person has committed the offense of unlawful carry of a weapon. It is safe to say that the most common consequence for illegally carrying a club is that it will be treated as a class C misdemeanor. In Texas , class C misdemeanors entail a maximum fine of $500, while class B misdemeanors carry a maximum fine of $2000. If it is determined that the dangerous weapon or deadly weapon was carried with criminal intent, then it is treated as a more severe criminal offense. Indeed, the crime may be elevated to a state jail felony if a defendant is found to have carried the club with criminal intent and either of the following applied: (1) the actor is a member of a criminal street gang; or (2) the actor has previously been convicted two or more times for an offense under this section.
Comparison of Baton Laws between States
In many states, expandable batons are classified as a type of nunchaku and therefore prohibited. For example, in Illinois carrying a collapsible baton is a felony. G. Geuss, Weaponry – Guns & Knives, S. ILL. U. L.J. 1, 14-15 (2008). In Ohio, similar batons are illegal to manufacture, possess, or sell. Henry David Inkersley, Concealed Weapons: The Legality of Tasers, Stun Guns, Nunchucks, and Other Non-Lethal Weapons, 31 Northern Kentucky L. Rev. 623, 643 (2004).
States that permit the sale and use of expandable batons for personal self-defense often have felony specifications for using them against another. For example, Tennessee permits the use of a "billy" for self-defense but using one against a police officer constitutes a felony. Geuss, G. Weaponry – Guns & Knives, S. ILL. U. L.J. 1, 14-15 (2008). Similarly, Ohio allows concealed carry of a crushing instrument but misuse of it is a felony. Inkersley, Concealed Weapons: The Legality of Tasers, Stun Guns, Nunchucks, and Other Non-Lethal Weapons, 31 Northern Kentucky L. Rev. 623, 657 (2004).
Texas is unusual in permitting the carrying of an expandable baton in a concealed manner. Unlike many other states, Texas allows both open and concealed carriers to keep a baton between their hand and wrist. Whereas many states classify expandable batons as nunchaku, Texas courts have pointed out that expandable batons do not fall within that definition. Therefore it is legal to own an expandable baton in Texas, provided it is carried for self-defense.
Tip for Baton Owners in Texas
We provided a comprehensive summary of the law regarding expandable batons in last week’s post. No firearm or weapon lawyer can give positive advice when the law is unclear or unsettled. It is our responsibility to present to you our interpretation of the law and give as much advice as we can to keep your legal basis for possession as non-controversial as possible.
With that in mind, here are some bits of advice.
First and foremost, avoid these weapons unless you know why you want one and can think through use of force scenarios and how a baton would fit into your decision making process in each scenario.
Second, if you have one and are stopped by police , do not fail to declare it or own up to it. The Supreme Court in Berkemer v. McCarty made it clear that persons are not under arrest and therefore no probable cause is required for weapons charges. As long as the officer has reasonable suspicion of criminal conduct it is relatively automatic to rest someone for weapons possession. Expandable batons are weapons. Always. So just explain that you have one in your pocket, it is not concealed and you have it only to protect yourself from potential attacks.
Third, if you have one that you carry, keep the packaging materials, and an information pamphlet like the one shown above, and keep a copy of this blog post in your Portable Electronic Document Assistant (PEDD) of some sort.
Finally, if you do carry a baton, be careful, deliberate, and restrained in how you demonstrate its efficiency. You don’t want to give the police opportunity to say that you are using it as a stun gun.