Knoxville PD apologizes for open carry incident in Wal-Mart

[TGO David]

I wholeheartedly agree.

[DMark]

I keep a folded copy of the AG Opinion on Open-Carry in my wallet, for reference. It's not the ultimate authority.....

But it is the Ultimate and Final word for all LEOs in the state. The AG's opinions are the base from which law enforcement can act.

[DaveTN]

But it is the Ultimate and Final word for all LEOs in the state. The AG's opinions are the base from which law enforcement can act.

I’m not arguing, but can you offer some proof of that? If it is the ultimate and final word, LEO’s would not make an arrest, Prosecutors would not file a case, and if they did the Judge would dismiss it without a trial.

A lawyer sent me a link to the description from the Texas AG website. Obviously in Texas it is not the ultimate or final anything. Is Tennessee different?

Attorney General Opinions clarify the meaning of existing laws. They do not address matters of fact, and they are neither legislative nor judicial in nature. That is to say, they cannot create new provisions in the law or correct unintended, undesirable effects of the law. Opinions interpret legal issues that are ambiguous, obscure, or otherwise unclear. Attorney General Opinions do not reflect the AG's opinion in the ordinary sense of expressing his personal views. Nor does he in any way "rule" on what the law should say. Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled. Ultimate determination of a law's applicability, meaning or constitutionality is left to the courts. For this reason, the Attorney General generally does not write opinions on issues that are in pending litigation.

http://www.oag.state.tx.us/opinopen/opinhome.shtml

[molonlabetn]

...it carries the weight and force of law unless or until it is modified or overruled...

That's good enough for me. I don't know of any police officer who is in a position to question what is, in effect, the law.

[DaveTN]

(It pays to know who you're going to call before you're ever in that position at 2am!)

Most people don’t think of that.

If you have had a clean shoot, your attorney probably would not have you invoke Miranda. Doing so could cause you a lot of grief and expense. When in doubt you need to be able to make a call right then and get an answer.

I’m not saying you should necessarily make a statement; I’m saying that invoking Miranda has consequences.

[The Rabbi]

But it is the Ultimate and Final word for all LEOs in the state. The AG's opinions are the base from which law enforcement can act.

In this great country of ours you can arrest anyone for anything. After an extensive and expensive trial and possible appeals you might be vindicated. You might even get a formal apology from the police chief.

It aint worth it to me.

[DMark]

I’m not arguing, but can you offer some proof of that?.... Is Tennessee different?

Yes, but only because I talked directly with the AG at the time he issued the opinion. The copy I have of his opinion was FAX to me from his office. This opinion carries a bit more weight because it was a reply to a state congressional question.

And Yes Tennessee is different than Texas on a number of courts (to include that our UT won this weekend and their UT didn't ).

Bottom Line is that if you open carry expect to draw attention (LEOs, Public) because they don't all read AG opinions. And expect attention from the Bad Guys who are sizing up their targets.

[molonlabetn]

In this great country of ours you can arrest anyone for anything. After an extensive and expensive trial and possible appeals you might be vindicated. You might even get a formal apology from the police chief.

It aint worth it to me.

Did the fellow in the subject story have to go thru an extensive or expensive trial to be vindicated or get an apology from the department?

[The Rabbi]

Did the fellow in the subject story have to go thru an extensive or expensive trial to be vindicated or get an apology from the department?

He wasn't arrested either.

Your point?

[molonlabetn]

He wasn't arrested either.

Your point?

By definition, he was arrested... he simply was not taken to jail or charged with anything.

[The Rabbi]

By definition, he was arrested... he simply was not taken to jail or charged with anything.

He was not arrested. He was detained.

[molonlabetn]

He was not arrested. He was detained.

http://criminal.lawyers.com/Criminal-Law--Arrest-and-Evidence-FAQ.html#one

Q: What's the difference between being arrested and being detained?

<HR><REM Answer area>A: "Arrested" means you have been taken into custody and can't leave. You can be detained for a short period of time if a police officer or other person believes you may be involved in a crime.

Being wrestled to the ground, patted down, and held involuntarily for a great length of time is not detainment.

[DaveTN]

Being wrestled to the ground, patted down, and held involuntarily for a great length of time is not detainment.

Being patted down and disarmed for the safety of the Officer is always okay. Being handcuffed without being arrested is also routinely done anymore. Who was wrestled to the ground and held for a "great length" of time?

[saintsfanbrian]

In order to be arrested don't you have to be read your Miranda rights and doesn't the officer have to tell you that you are being placed under arrest?

[DaveTN]

In order to be arrested don't you have to be read your Miranda rights and doesn't the officer have to tell you that you are being placed under arrest?

Miranda has nothing to do with if you are under arrest or not; you do not have to be advised of your Miranda rights.

Although they usually do tell you when you are under arrest; there is sometime no time to do so and there is no requirement to do so. If I was called to a scene and I saw someone armed there would be no discussions about anything until that person complied with my orders to disarm.

[saintsfanbrian]

But again, don't you have to inform the person that they are being placed under arrest?

[molonlabetn]

But again, don't you have to inform the person that they are being placed under arrest?

<TABLE cellSpacing=0 cellPadding=0 border=0><TBODY><TR><TD>40-7-106. Notice of authority and grounds for arrest — Telephone call. —

</TD><TD></TD></TR><TR><TD colSpan=3></TD></TR><TR><TD colSpan=3 height=12></TD></TR></TBODY></TABLE><TABLE cellSpacing=0 cellPadding=0 width="100%" border=0><TBODY><TR><TD><!-- Text -->

</TD></TR></TBODY></TABLE><TABLE cellSpacing=0 cellPadding=0 border=0><TBODY><TR><TD rowSpan=5></TD><TD colSpan=3 height=12></TD><TD rowSpan=5></TD></TR><TR><TD colSpan=3></TD></TR><TR><TD></TD><TD>(a) When arresting a person, the officer shall inform the person of the officer's authority and the cause of the arrest, and exhibit the warrant if the officer has one, except when the person is in the actual commission of the offense or is pursued immediately after an escape.

</TD></TR></TBODY></TABLE>

[DaveTN]

But again, don't you have to inform the person that they are being placed under arrest?

I didn’t in Illinois, but those laws change all the time. Our department policy was that we could not cuff someone that was not under arrest. But that was just a department policy; not state law. It’s done all the time now for the safety of the Officer. I doubt Tennessee is any different; but I’m not sure.

A good test to find out if you are under arrest is to ask "Am I free to leave?" It may not be beneficial to ask this question if the Officers are in the middle of an investigation to determine if they are going to arrest you.

I guess you would have to lay out the scenario you are questing?

I have seen many cases where a person’s defense to resisting arrest was that they were not told they were under arrest (it’s a pretty common defense). I have not seen one be successful, but I guess it’s worth a try.

You need some Tennessee Street Cops on this forum.

[Mike.357]

I was never mirandized, nor was I told at which point I was under arrest. I kind of figured when the cuffs went on was when it went down.

[molonlabetn]

I was never mirandized, nor was I told at which point I was under arrest. I kind of figured when the cuffs went on was when it went down.

They must have considered that you were in the act of committing the 'offense' as it were.

[Marswolf]

I was never mirandized, nor was I told at which point I was under arrest. I kind of figured when the cuffs went on was when it went down.

Not necessarily. You can put cuffs on someone without arresting them while you are checking out the situation. Don't you watch Cops?

Bad boy, bad boy........

[molonlabetn]

...If I was called to a scene and I saw someone armed there would be no discussions about anything until that person complied with my orders to disarm.

In TN, since it is not an offense to refuse to obey a lawful order given by an officer (see TN AG opinion #00-147), if one ever encountered a person who knew their rights, one would be forced to either arrest them (if you had a reason), or let them continue about their business. If I was approached like that, there would be no discussion or cooperation at all other than identifying myself. If you've got a job to do, do it... you shouldn't need my permission or jumping thru hoops if it's actually justified.

I hate fishing expeditions and un-called for harassment. If they want to tackle me simply for having a gun, fine, they will pay for their un-professionalism, false-arrest and assault afterwards.

On the other hand, I'd be more than happy to comply fully with an officer who treated me like a human-being, and was professional about their job... I know plenty of those, thankfully they seem to be in the majority.

[jgrauman]

while i was a in college a buddy and i were mistaken as two robbers and had 5 patrol cars do a felony stop on us in the middle of the street. ripped out of the car at gun point thrown on the hood and handcuffed. He was even put in the back of one of the patrol cars. they questioned us and realized the mistake, told us to be careful and let us go. pretty sure it was for their protection.

edit: this was in VA

[Smith]

while i was a in college a buddy and i were mistaken as two robbers and had 5 patrol cars do a felony stop on us in the middle of the street. ripped out of the car at gun point thrown on the hood and handcuffed. He was even put in the back of one of the patrol cars. they questioned us and realized the mistake, told us to be careful and let us go. pretty sure it was for their protection.

edit: this was in VA

This would be considered "just cause" because of the similarity to the BG, until ID is verified.

[DaveTN]

In TN, since it is not an offense to refuse to obey a lawful order given by an officer (see TN AG opinion #00-147), if one ever encountered a person who knew their rights, one would be forced to either arrest them (if you had a reason), or let them continue about their business. If I was approached like that, there would be no discussion or cooperation at all other than identifying myself. If you've got a job to do, do it... you shouldn't need my permission or jumping thru hoops if it's actually justified.

I hate fishing expeditions and un-called for harassment. If they want to tackle me simply for having a gun, fine, they will pay for their un-professionalism, false-arrest and assault afterwards.

On the other hand, I'd be more than happy to comply fully with an officer who treated me like a human-being, and was professional about their job... I know plenty of those, thankfully they seem to be in the majority.

You and I have never agreed on this and I doubt we ever will. There is no law in any state that requires a Police Officer to put life in danger. If a suspect is armed I was not playing 20 questions with him or being distracted by conversation until the scene is secure. I would order you to your knees with your hands on your head; if you failed to comply I would keep you at gun point until other Officers arrived; at which time you would forcibly be placed on the ground. If at any point your hands moved towards your weapon you would be shot. You or your surviving family members could line up to sue me or whoever you like.

As I have explained before you have no idea why you are being stopped. You are so locked in on the idea that your carry permit gives you some special Constitutional right and that some Police Officer is so set on violating some right (that you don’t even have) that you are blinded to any facts.

The AG Opinion…. (And we have pretty much determined they don’t mean much) you are quoting has to do with whether or not “passive resistance†is enough to justify a charge for resisting arrest. It that case is was specifically addressing a person that sat in a car and refused to get out. There is nothing in that opinion to even imply that the Officers can’t forcibly remove the person from the vehicle.

Now please explain to me how you got from that opinion to “In TN, it is not an offense to refuse to obey a lawful order given by an officerâ€

To even suggest that someone not comply with the orders of Police when firearms are involved is ridiculous.