Don't fire a gun within Memphis city limits

[NextExit]

Just call 911 instead

http://wreg.com/2017/02/10/truck-driver-injured-when-shots-are-fired-at-memphis-home-depot/

 

[mikegideon]

4 minutes ago, NextExit said:

Just call 911 instead

http://wreg.com/2017/02/10/truck-driver-injured-when-shots-are-fired-at-memphis-home-depot/

 

Was he in fear for his life from a goose or something? You don't use a gun as a noise maker, and you for sure don't shoot one into the air. I would have ticketed him too. 

[Omega]

Yea, but what idiot comes back after shots are fired?  

[tnhawk]

9 hours ago, Omega said:

Yea, but what idiot comes back after shots are fired?  

What idiot would sleep in a parking lot in Memphis?

[NextExit]

1 hour ago, tnhawk said:

What idiot would sleep in a parking lot in Memphis?

Maybe he assumed there's 24 hour security.  Or maybe he doesn't know Memphis.  If his company policy is no guns in the truck then the citation will be the least of his concerns.

[mikegideon]

53 minutes ago, NextExit said:

Maybe he assumed there's 24 hour security.  Or maybe he doesn't know Memphis.  If his company policy is no guns in the truck then the citation will be the least of his concerns.

I don't know that many truckers. The ones I know aren't allowed to carry

[Omega]

5 hours ago, tnhawk said:

What idiot would sleep in a parking lot in Memphis?

Touche, probably didn't plan his logbook right.

[ReeferMac]

4 hours ago, mikegideon said:

I don't know that many truckers. The ones I know aren't allowed to carry

Federal DOT regulations prohibit it.... that being said, many do.

[Oh Shoot]

11 minutes ago, ReeferMac said:

Federal DOT regulations prohibit it.... that being said, many do.

Common misconception -- totally false.

Individual's firearm possession in commercial vehicles is totally up to individual state laws, and/or federal law regarding on some properties, same as possession in private vehicles.

It's true that most carriers prohibit it as employment policy, including for owner operators under lease.

- OS

Edited February 19, 2017 by Oh Shoot

[bigtruuck]

Just to jump in as a truck driver who carries every day, Carry in a Commercial vehicle is not prohibited by the feds. I have been pulled and inspected in many states, as long as you have a valid permit in the state your in you are good to go.

 

Oh Shoot you and i musta been typing at the same time.

Edited February 19, 2017 by bigtruuck
add

[mikegideon]

1 hour ago, ReeferMac said:

Federal DOT regulations prohibit it.... that being said, many do.

That's what I thought

[Omega]

12 minutes ago, mikegideon said:

That's what I thought

I wondered as well, when at JD, some of the truck drivers said they couldn't carry a hammer because it could be considered a weapon.

[Oh Shoot]

35 minutes ago, mikegideon said:

That's what I thought

20 minutes ago, Omega said:

I wondered as well, when at JD, some of the truck drivers said they couldn't carry a hammer because it could be considered a weapon.

Nowhere is there more "I thought" and "they said" than in firearm/weapons stuff, and especially firearm law.

The only DOT related firearm/ammunition laws/regs you will find is in regard to hauling them as cargo.

As often as has this come up on TGO, I'm surprised that any long timer here still doesn't know it, really. Um, Mikey.

And yes, a hammer can indeed be considered a weapon, same as a baseball bat or tire iron, depending, right here in TN, but doesn't have anything to do with DOT or other federal law.

- OS

Edited February 19, 2017 by Oh Shoot

[mikegideon]

I have heard it from drivers. But, you're right. No law. You have all the state laws. And I am betting that almost no companies allow it. 

[Oh Shoot]

6 minutes ago, mikegideon said:

I have heard it from drivers. But, you're right. No law. You have all the state laws. And I am betting that almost no companies allow it. 

They don't "on paper" for liability reasons, but many will just wink about it if no other issues from the driver, especially regarding contracted owner operators.

- OS

Edited February 19, 2017 by Oh Shoot

[mikegideon]

I'm betting the risk management folks at decent sized companies would prohibit them in any company owned vehicles. 

[Chucktshoes]

3 hours ago, Oh Shoot said:

They don't "on paper" for liability reasons, but many will just wink about it if no other issues from the driver, especially regarding contracted owner operators.

- OS

This is how the conversation goes when the subject is brought up with loss prevention. 

"Company policy prohibits keeping firearms in the truck, but nobody here is going to search your truck. Let me repeat that, NOBODY here is going to search your truck." 

 

[DaveTN]

So one guy is cranking rounds into the air, the other guy came back and starts cranking rounds into the truck. They are afraid to shoot each other, but are okay with making it pretty dangerous for anyone else in the area. Jeeze

Of course the real problem here is that the driver couldn’t shoot someone burglarizing his truck.

But he could have when he came back with the gun.

Edited February 20, 2017 by DaveTN

[JayC]

6 hours ago, DaveTN said:

So one guy is cranking rounds into the air, the other guy came back and starts cranking rounds into the truck. They are afraid to shoot each other, but are okay with making it pretty dangerous for anyone else in the area. Jeeze

Of course the real problem here is that the driver couldn’t shoot someone burglarizing his truck.

But he could have when he came back with the gun.

Likely under state law he could have shot them because the bad guys clearly forcibly entered vehicle.  Also these charges will get dropped, state preemption prohibits a person from being charged who is involved in a self defense shooting.  

No way the local DA goes to bat that the truck driver didn't have a reasonable fear of death after the bad guys came back and shot at him.  And remember in all likelihood the DA would have to prove beyond a reasonable doubt the truck driver was NOT in fear of his life, that is not a easy hill to climb.

Finally, while shooting shots into the air isn't a very good self defense strategy and frankly very dangerous, maybe we give the truck driver the benefit of the doubt since he was awoke out of a deep sleep by 3 bad guys trying to break into the place where he was sleeping.

[JAB]

46 minutes ago, JayC said:

Likely under state law he could have shot them because the bad guys clearly forcibly entered vehicle.  Also these charges will get dropped, state preemption prohibits a person from being charged who is involved in a self defense shooting.  

No way the local DA goes to bat that the truck driver didn't have a reasonable fear of death after the bad guys came back and shot at him.  And remember in all likelihood the DA would have to prove beyond a reasonable doubt the truck driver was NOT in fear of his life, that is not a easy hill to climb.

Finally, while shooting shots into the air isn't a very good self defense strategy and frankly very dangerous, maybe we give the truck driver the benefit of the doubt since he was awoke out of a deep sleep by 3 bad guys trying to break into the place where he was sleeping.

The DA can very easily prove that the truck driver was not in fear for his life.  If he had been in fear for his life he would have shot/shot at the bad guys and not into the air.  As for him having a reasonable fear after they came back and shot at him, obviously - but the way the article is written it seems he fired shots into the air before the bad guys shot at his truck, not after.  Finally, IANAL but I don't believe that state preemption applies because shooting into the air is not a 'self defense' shooting - shooting or shooting at the bad guys is self defense shooting.  If the situation was such that the driver felt okay giving warning shots then he wasn't in that great of an amount of fear for his life.

As DaveTN said, the real problem is that the driver couldn't (legally) shoot someone for burglarizing his truck. 

Edited February 20, 2017 by JAB

[JayC]

6 hours ago, JAB said:

The DA can very easily prove that the truck driver was not in fear for his life.  If he had been in fear for his life he would have shot/shot at the bad guys and not into the air.  As for him having a reasonable fear after they came back and shot at him, obviously - but the way the article is written it seems he fired shots into the air before the bad guys shot at his truck, not after.  Finally, IANAL but I don't believe that state preemption applies because shooting into the air is not a 'self defense' shooting - shooting or shooting at the bad guys is self defense shooting.  If the situation was such that the driver felt okay giving warning shots then he wasn't in that great of an amount of fear for his life.

As DaveTN said, the real problem is that the driver couldn't (legally) shoot someone for burglarizing his truck. 

1. I don't think a DA can prove beyond a reasonable doubt that the truck driver wasn't in fear of his life.  That is a very hard hill to climb legally.  See below why this standard of evidence probably applies.

2. Pulling a firearm out of a holster is considered self defense under TN case law (note not even point it at the suspect), firing at the suspect (while dumb) and not hitting them is obviously covered as self defense.  I don't see how firing warning shots - into the air or ground, etc isn't self defense, and in general it seems to have worked, because the bad guys ran away, and only later returned.  I'd think it would be pretty easy to make the case to a judge firing into the air was meant to chase the threat off.

3. See above I don't see how you find a judge with current case law that would rule firing a firearm with the intent to case away a bad guy wasn't a form of self defense.  And there is some VERY good case law going back 50 years on police officers firing warning shots being ruled self defense in nature.

4. DaveTN is wrong IMHO, a vehicle under state law is the same as your home, if the bad guys forcible entered the vehicle (opening an unlocked window or door is forcible entry) then the castle doctrine kicks in under state law, and he would be presumed to have a reasonable fear of his life.  Keep in mind you don't have to be IN the car or house at the time entry is made, only that you have a reasonable belief that an unlawful entry WAS made.  That appears to be the case here.

Remember that state law was changed 2 years ago to better clarify that while you can shoot somebody to ONLY protect property, just because they're stealing your property does not remove your self defense protections under both castle doctrine AND stand your ground doctrine.

Finally, while most of us feel shooting shots into the air is stupid and a bad way to protect yourself, what do you think the chances are you going to find a jury of average citizens who think shooting into the air isn't self defense.  Remember we just got rid of a sitting Vice President that gave a speech stating that shooting 2 blasts of a shotgun into the air was all the self defense most people need.  I just don't think the DA really wants to go to bat over this case, the likelihood of a not guilty verdict is pretty high, or worse a judge rules the shooting into the air was an act of self defense and the DA has a near impossible task of proving there was no fear.

We'll have to wait and see.

[Omega]

Unfortunately, there is a strong possibility he can be convicted.  Especially if there are a bunch of liberals in the jury, and we know Memphis is full of them.  A good read:

https://www.usconcealedcarry.com/warning-shots/

 

[DaveTN]

10 hours ago, JayC said:

4. DaveTN is wrong IMHO, a vehicle under state law is the same as your home, if the bad guys forcible entered the vehicle (opening an unlocked window or door is forcible entry) then the castle doctrine kicks in under state law, and he would be presumed to have a reasonable fear of his life.  Keep in mind you don't have to be IN the car or house at the time entry is made, only that you have a reasonable belief that an unlawful entry WAS made.  That appears to be the case here.

And IMHO you are wrong. A Castle Doctrine doesn’t create a free fire zone. A presumption could be there, but a Prosecutor is free to attack that presumption. From the story I am assuming they were in the trailer and not in the cab. From the pictures in the story there is no access from the trailer to the cab and the trailer is not permanently attached. Pretty tough to make an argument he was in immediate danger of death or great bodily harm.

However, if that wasn’t the case and they were entering the cab; you are right.

And where are you getting this part you are adding about not having to be in the house or car, only have a reasonable belief entry was made?  I don’t believe that.

He couldn’t legally shoot them for stealing stuff from his trailer anymore than you could for someone stealing stuff from your yard or detached garage.

However, it’s all moot(other than the discharging charge if it goes to court).  Because he was absolutely justified in shooting the guy when he came back with a gun; especially when he started firing. Either he didn’t want to shoot him or he didn’t have the ability to shoot him.

However, I’ll give the guy the benefit of the doubt on that because we don’t know any of the facts about that other than he was in the truck and the other guy didn’t just walk up shooting because there was a discussion about car keys. It would be interesting to know why he didn’t shoot the guy or even return fire while being shot at, and why no one was shot in an exchange that had to be just a few feet apart.

As I have said before, I remember when you could shoot fleeing forcible felons. We need that back. Our legal system shouldn’t be judging people that are defending themselves against criminals committing a felony. We also had far less felons run when caught in the act as compared to today when everyone runs; they have no reason not to.

[JAB]

18 hours ago, JayC said:

1. I don't think a DA can prove beyond a reasonable doubt that the truck driver wasn't in fear of his life.  That is a very hard hill to climb legally.  See below why this standard of evidence probably applies.

2. Pulling a firearm out of a holster is considered self defense under TN case law (note not even point it at the suspect), firing at the suspect (while dumb) and not hitting them is obviously covered as self defense.  I don't see how firing warning shots - into the air or ground, etc isn't self defense, and in general it seems to have worked, because the bad guys ran away, and only later returned.  I'd think it would be pretty easy to make the case to a judge firing into the air was meant to chase the threat off.

3. See above I don't see how you find a judge with current case law that would rule firing a firearm with the intent to case away a bad guy wasn't a form of self defense.  And there is some VERY good case law going back 50 years on police officers firing warning shots being ruled self defense in nature.

4. DaveTN is wrong IMHO, a vehicle under state law is the same as your home, if the bad guys forcible entered the vehicle (opening an unlocked window or door is forcible entry) then the castle doctrine kicks in under state law, and he would be presumed to have a reasonable fear of his life.  Keep in mind you don't have to be IN the car or house at the time entry is made, only that you have a reasonable belief that an unlawful entry WAS made.  That appears to be the case here.

Remember that state law was changed 2 years ago to better clarify that while you can shoot somebody to ONLY protect property, just because they're stealing your property does not remove your self defense protections under both castle doctrine AND stand your ground doctrine.

Finally, while most of us feel shooting shots into the air is stupid and a bad way to protect yourself, what do you think the chances are you going to find a jury of average citizens who think shooting into the air isn't self defense.  Remember we just got rid of a sitting Vice President that gave a speech stating that shooting 2 blasts of a shotgun into the air was all the self defense most people need.  I just don't think the DA really wants to go to bat over this case, the likelihood of a not guilty verdict is pretty high, or worse a judge rules the shooting into the air was an act of self defense and the DA has a near impossible task of proving there was no fear.

We'll have to wait and see.

1. Again, the very fact that he didn't shoot at the bad guys but, instead, shot into the air - which indicates trying to scare someone, not defending against a perceived threat - will probably be used against him.

2. No, drawing a firearm from a holster is not automatically self defense.  In some cases, such activity could be considered 'brandishing'.  Unless I am mistaken (and maybe someone else can fill in the details) there was a case a few years back where two men got into a verbal confrontation at a school event.  One man followed the other to his car.  Upon arriving at his car, the latter showed the man who had followed him that he had a gun in order to get the other man to back off.  He was charged for having the firearm on school property.  It is my understanding that a judge refused to drop the charges based on the claim that the man acted in self defense and, by the law, could not be charged for having been discovered to have had the firearm in a location where it would, otherwise, be against the law.  The judge ruled that, as the defendent did not actually shoot the aggressor, he was not acting in self defense.  Basically, he told the defendant that if he had actually shot the other guy then he would have been justified and likely would not face any charges but as he did not shoot the other guy - or even shoot at him - it was not considered a case of self defense under the law.  Anyone else remember that and can provide more details?  I really don't think I dreamed it.

3. Again, self defense involves a reasonable fear of death or serious, bodily injury.  Perhaps the driver's lawyer will successfully argue that firing a gun into the air indicates his client had such a fear.  More power to him if he does but I find it very doubtful.  If I really and truly think that someone is going to try and kill me then I am going to be shooting at them, not at the sky.  Showing a would-be robber that you have a weapon in order to scare them away is one thing.  Firing bullets into the air - bullets that have to come down, somewhere - is something else, entirely.

4. As DaveTN has already addressed, it sounds like the bad guys were breaking in to the cargo trailer area of the truck and not the cab where the driver was sleeping.  Would a court find that - even though the trailer is a separate area with no access to the occupied cap - it is still a 'part' of the vehicle while the two are hooked up?  Maybe but I don't think that is necessarily as clear cut as you are arguing.

As you said, we'll have to wait and see.

Edited February 21, 2017 by JAB

[JayC]

On 2/21/2017 at 5:34 AM, DaveTN said:

And IMHO you are wrong. A Castle Doctrine doesn’t create a free fire zone. A presumption could be there, but a Prosecutor is free to attack that presumption. From the story I am assuming they were in the trailer and not in the cab. From the pictures in the story there is no access from the trailer to the cab and the trailer is not permanently attached. Pretty tough to make an argument he was in immediate danger of death or great bodily harm.

However, if that wasn’t the case and they were entering the cab; you are right.

And where are you getting this part you are adding about not having to be in the house or car, only have a reasonable belief entry was made?  I don’t believe that.

He couldn’t legally shoot them for stealing stuff from his trailer anymore than you could for someone stealing stuff from your yard or detached garage.

However, it’s all moot(other than the discharging charge if it goes to court).  Because he was absolutely justified in shooting the guy when he came back with a gun; especially when he started firing. Either he didn’t want to shoot him or he didn’t have the ability to shoot him.

However, I’ll give the guy the benefit of the doubt on that because we don’t know any of the facts about that other than he was in the truck and the other guy didn’t just walk up shooting because there was a discussion about car keys. It would be interesting to know why he didn’t shoot the guy or even return fire while being shot at, and why no one was shot in an exchange that had to be just a few feet apart.

As I have said before, I remember when you could shoot fleeing forcible felons. We need that back. Our legal system shouldn’t be judging people that are defending themselves against criminals committing a felony. We also had far less felons run when caught in the act as compared to today when everyone runs; they have no reason not to.

IANAL, but I can read Ok, so lets bring out the law and look at it.  39-11-611a9 defines a vehicle as:

Quote

"Vehicle" means any motorized vehicle that is self-propelled and designed for use on public highways to transport people or property.

While I can't find any case law on the subject a trailer connected to a truck is considered a single vehicle, and both the parts able to carry people and property are protected by the 39-11-611.  Who knows how the judge rules, but by plain reading of the law is 39-11-611 would seem to apply.

The DA is free to attack the Presumption but it's a very high road to climb, and in this case would be virtually impossible IMHO, since all the defense has to say, is look they had a gun, they came back and shot him, if he had used less force they might have shot him right away.  Remember DA has to prove beyond a reasonable doubt he wasn't in fear for his life, kinda hard when these guys SHOT at him. We have case law that says just clearing the holster is an act of self defense under 39-17-1322, clearly shooting in the air was intended to make the threat run away, and therefore remove the threat.  It was clearly a STUPID way to remove the threat, but it sure looks like an act of self defense to me.

As for shooting people for stealing your stuff, you're right... but if they break into my garage and I catch them unlawful in my garage on or my curtilage, it's the same as if I found them in my house trying to steal.  It's assumed under the law that I have a reasonable fear of imminent death.  The fact that they're stealing out of my car/garage/home does not remove their presumption under the law.

If the shooting was self defense, he can't be charged under the local ordinance because of state preemption.  But my guess is this guys attorney will tell him to pay the fine which can't be more than $50 to $100 and not risk a judge ruling the shooting into the air wasn't self defense, pissing off the local DA and the DA deciding to go to bat on more chargers.

My point is why STUPID shooting into the air is probably still considered self defense under state law.