NM: Judge tell police to leave OCers alone

[Guest justme]

Sorry Fallguy but there is a law against driving without a license just like there is against carrying a gun without a permit.

Your trying to kick a dead horse. The law is unfortunately what it is. The difference between driving without a license and carrying a firearm is--the police won't know whether you do or do not have a driver license until they conduct a traffic stop on you. In contrast--it is quite obvious who is and is not carrying a gun when you OC, and in Tennessee--the police can stop you long enough to determine if you have a permit.

I very much would like to see state law changed to permit the carry of a firearm without a permit. I would also like to see there be no necessity for "Defenses to carrying"--because if possession of a firearm is legalized without a permit--both OC and CC...then there is no need for a defense to carry.

If you want the law changed--write and call your state legislators and stay on them about legalizing possession and carry of a firearm without a permit. Arguing with Fallguy isn't going to change the law.

The bottom line is--we should not have to purchase a privilege. So speak to your legislators and help get the law changed so that we can carry without a permit.

Edited September 14, 2009 by justme

[Guest canynracer]

Actually, I believe the law says it's illegal to carry a firearm if it's loaded or the ammo is near, plus being concealed--aka: intent to go armed. Really, technically by the law, if a firearm is not concealed and there is no ammo on you/in reach, you have broken no law.

it is against the law to carry a gun. your permit is a defense to that...ammo, or no ammo.

It's kinda confusing and here's why. 39-17-1307 says "A person commits an offense who carries with the intent to go armed a firearm." Well, without ammo, it's hard to prove "intent to go armed." I know section 1308 says defense, but without intent to go armed, 1308 doesn't apply as it's not against the law. But when you have ammo in/near the gun since intent to go armed, that's when "defense" kicks in..

You dont need ammo to use the gun as "armed" the person you point it at doesnt know about the ammo status.

What's most annoying is that carrying a firearm is a right, but we have laws against it. Driving is NOT a right, but it's easy to get a license and there's not a long section of where you can and can not drive, etc. We really have our laws turned around when it comes to "rights".

Carrying a firearm is not a right in TN, its a priviledge...you pay for it...

[DaveTN]

The good Judge is grandstanding; I suspect his decision will be overturned.

These cops didn’t stop a guy on the street and harass him; they were called by a citizen that had concerns and wanted them to respond.

[Fallguy]

The good Judge is grandstanding; I suspect his decision will be overturned.

These cops didn’t stop a guy on the street and harass him; they were called by a citizen that had concerns and wanted them to respond.

But how far are the cops supposed to go when someone is not committing any crime, just because someone called?

Aren't they supposed to enforce the law, not the policy of a business?

If the theater manager asked the guy to leave or asked the police to make him leave, that may have been different, but that apparently isn't what happened.

If a person doesn't like others chewing bubble gum and calls the police about someone blowing a bubble, are the officers supposed to detain the person, take his bubble gum and ask him a bunch of question, just because someone called them?

[TripleDigitRide]

Actually, I believe the law says it's illegal to carry a firearm if it's loaded or the ammo is near, plus being concealed--aka: intent to go armed. Really, technically by the law, if a firearm is not concealed and there is no ammo on you/in reach, you have broken no law.

I think that may be correct, or very close to it.

Before I got my HCP, I had to pick up a Ruger .357 Blackhawk from the local Sheriff's Office after it was stolen from me.

When the officer handed me the gun I began to wrap it in a towel. He quickly stopped me. He informed me that I could not wrap the gun in a towel because it would then be concealed.

The same officer told me that I could walk the streets with it on my head or a necklace for all he cared, but I could not walk in public with it concealed in a towel.

If what this officer told me is in fact the truth, carrying a gun in public - without an HCP - is not against the law.

[EMTRN]

I think that may be correct, or very close to it.

Before I got my HCP, I had to pick up a Ruger .357 Blackhawk from the local Sheriff's Office after it was stolen from me.

When the officer handed me the gun I began to wrap it in a towel. He quickly stopped me. He informed me that I could not wrap the gun in a towel because it would then be concealed.

The same officer told me that I could walk the streets with it on my head or a necklace for all he cared, but I could not walk in public with it concealed in a towel.

If what this officer told me is in fact the truth, carrying a gun in public - without an HCP - is not against the law.

This officer needs to review his TCA pocket book.

[TripleDigitRide]

This officer needs to review his TCA pocket book.

He was/is with the Overton County Sheriff's Department.

Based on the number of times they've made the news, and the number of lies they told me during the whole ordeal, that doesn't surprise me very much.

[DaveTN]

But how far are the cops supposed to go when someone is not committing any crime, just because someone called?

They are suppose to go as far as talking to the guy and determine that it is legal for him to carry and he isn’t intoxicated or have other problems. It is unlawful to carry in NM in businesses that are posted or ask you to leave. Since the manager called, we can assume he didn’t want the guy there. If the Manager doesn’t want to approach Rambo while he is open carrying; so be it, call the cops.

<O:p</O:p

If these cops had told the manger that there wasn’t anything they could do (Which would not be true) and this guy went back in the theater and opened fire, killing a bunch of people; there would be a bunch of people calling for those Cops’ heads.

<O:p</O:p

Dammed if you do and dammed if you don’t. I would error on the side of caution. Being a cop isn’t a job for someone that is worried about being sued anyway. I don’t know why they chose to search this guy; I don’t know why they chose to disarm him. I can only guess that the Manger didn’t want him carrying since he let him back in after he put the gun in his car.

Aren't they supposed to enforce the law, not the policy of a business?

It sounds to me that they are one in the same. I briefly read that a business can post or ask you to leave. I don’t care enough to research it any farther; do you know something different?

If a person doesn't like others chewing bubble gum and calls the police about someone blowing a bubble, are the officers supposed to detain the person, take his bubble gum and ask him a bunch of question, just because someone called them?

They are supposed to do their jobs when called. Is this about guns or bubble gum?

[Fallguy]

They are suppose to go as far as talking to the guy and determine that it is legal for him to carry and he isn’t intoxicated or have other problems. It is unlawful to carry in NM in businesses that are posted or ask you to leave. Since the manager called, we can assume he didn’t want the guy there. If the Manager doesn’t want to approach Rambo while he is open carrying; so be it, call the cops.

<O:p</O:p

If these cops had told the manger that there wasn’t anything they could do (Which would not be true) and this guy went back in the theater and opened fire, killing a bunch of people; there would be a bunch of people calling for those Cops’ heads.

<O:p</O:p

Dammed if you do and dammed if you don’t. I would error on the side of caution. Being a cop isn’t a job for someone that is worried about being sued anyway. I don’t know why they chose to search this guy; I don’t know why they chose to disarm him. I can only guess that the Manger didn’t want him carrying since he let him back in after he put the gun in his car.

On the seeing if it legal for him to carry, Since OC is legal without a permit in NM, wouldn't they need some reason to think it wasn't legal for him to carry the gun other than the mere fact he had a gun?

I have no problem with the manager not approaching him. But if the manager doesn't want firearms in his place, why doesn't he post a sign. If the place was posted, I missed that in the story. If the manager wanted the cops to ask him to leave, why didn't the manager say that and the cops simply ask the man to leave?

I agree being a LEO can be a "no win" situation as far as public perception sometimes.

It sounds to me that they are one in the same. I briefly read that a business can post or ask you to leave. I don’t care enough to research it any farther; do you know something different?

I think you are right, but it has been determined what I think about the law doesn't carry any weight and I no longer look up and post links to laws.

But even if that is the case, if the business was not posted and he had not been asked to leave, then he wasn't violating policy or law at that point was he?

They are supposed to do their jobs when called. Is this about guns or bubble gum?

Yes, but again, isn't there job to enforce the law. In NM OC without a permit is just as legal as chewing gum. He was breaking no law (if not posted or asked to leave) If they had asked the manager do you want him to leave, the manager say yes and they relay the message and that be the end of it, probably would have never turned out like this.

Not everyone has to be treated like a criminal (or even a suspect without some sort of PC) just because the law was called upon them.

[Guest Abominable_Hillbilly]

They are suppose to go as far as talking to the guy and determine that it is legal for him to carry and he isn’t intoxicated or have other problems.

No, Dave. Simply knowing that a man is OC'ing a pistol, a perfectly lawful activity in NM, is not evidence of a crime. It doesn't go to RAS or PC of any other violation of the law. If all the officers know is that the man is OC'ing, how in the world could they articulate to a court that they detained him because they suspected something else? Intoxication, felon in possession, etc. Based on what? The sole fact that they saw him carrying a gun? How is that one fact evidence of intoxication, felon in possession, or mental instability?

It is unlawful to carry in NM in businesses that are posted or ask you to leave. Since the manager called, we can assume he didn’t want the guy there. If the Manager doesn’t want to approach Rambo while he is open carrying; so be it, call the cops.

This I partially agree with. These officers, in this particular case, certainly had cause to approach the man if he was in violation of a law regarding a restriction on carrying on private property where carry is prohibited by the owner.

Your pejorative use of the name "Rambo," though, pretty much tells us all your attitude toward this man and toward the practice of open carrying.

[Glock30Owner]

This I partially agree with. These officers, in this particular case, certainly had cause to approach the man if he was in violation of a law regarding a restriction on carrying on private property where carry is prohibited by the owner.

Your pejorative use of the name "Rambo," though, pretty much tells us all your attitude toward this man and toward the practice of open carrying.

In the opinion, the judge chastised the officers for acting as agents of the theater on their own accord. According to the documents, at no time were the officers asked to remove Mr. St. John. No evidence introduced indicates that the property was posted against the carry of firearms.

[Guest Abominable_Hillbilly]

In the opinion, the judge chastised the officers for acting as agents of the theater on their own accord. According to the documents, at no time were the officers asked to remove Mr. St. John. No evidence introduced indicates that the property was posted against the carry of firearms.

Yeah. I was drifting. All apologies. My only point was that if the officers had cause to believe the law had been violated, then, by all means, detain the man. If not, go find a crime and leave the man to his liberty.

[DaveTN]

In the opinion, the judge chastised the officers for acting as agents of the theater on their own accord. According to the documents, at no time were the officers asked to remove Mr. St. John. No evidence introduced indicates that the property was posted against the carry of firearms.

Help me out.…I admit I didn’t carefully read all 16 pages of the decision. I must have missed the part where the Judge chastised the Officers for acting as agents of the theater, or that they weren’t asked to get the guy out. Can you point that out for me?

<O:p</O:p

You can’t make judgments based on what a reporter writes.

<O:p</O:p

From the court records….

Mr. Zigmond directed Officer McColley to the theater where Mr. St. John was watching a movie and requested that Officer McColley "pull him out" because Mr. St. John's firearm was "making [Mr. Zigmond's] customers upset."

Apparently the author of that article thought the manager just wanted to show the cops what a nice gun the guy had.

[Fallguy]

Mr. Zigmond directed Officer McColley to the theater where Mr. St. John was watching a movie and requested that Officer McColley "pull him out" because Mr. St. John's firearm was "making [Mr. Zigmond's] customers upset."

Based on the above I have no problem with the officers approaching him and asking him to leave. But that is all they should have done, unless there was someother reason he was commiting a crime.

[Guest jwb68]

it is against the law to carry a gun. your permit is a defense to that...ammo, or no ammo.

You dont need ammo to use the gun as "armed" the person you point it at doesnt know about the ammo status.

Carrying a firearm is not a right in TN, its a priviledge...you pay for it...

Not all of this is true.

It is not illegal to carry a weapon. It is against the law to carry a weapon with the intent to go armed. If an individual carries a pistol without the intent of going armed he does not violate the law. Biggs v. State, 207 <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /><st1:State w:st="on">Tenn.</st1:State> 603, 341 S.W.2d 737, 1960 Sams v. State, 210 <st1:State w:st="on">Tenn.</st1:State> 16, 356 S.W.2d 273, 1962.

Without the intent or purpose of going armed there is no violation, and the mere carrying of a weapon does not deprive a defendant of the presumption of innocence. Cole v. State, 539 S.W.2d 46, (Tenn. Crim. App. 1976).

An unloaded weapon by itself does not infer an intent to go armed. However intent can be inferred by what one does with the weapon. Defendant who took two pistols, which had been unloaded by the police, and while on his way from home to store where he was employed pointed guns at police and snapped them several times was guilty of carrying pistols with intent to go armed. Brooks v. State, 187 <st1:State w:st="on">Tenn.</st1:State> 361, 215 S.W.2d 785, <st1:State w:st="on"><ST1:pTenn.</ST1:p</st1:State>(1948).

All of these cases are based on the older statutes but the courts would look at them for application.

As to the NM case, Fallguy is right. If the movie folks did not want the man there and ask to police to have him leave that is what they should have done. Nothing more or less.

Edited September 18, 2009 by jwb68

[DaveTN]

It is not illegal to carry a weapon. It is against the law to carry a weapon with the intent to go armed.

Same thing.

<O:p</O:p

Don’t fall into the “intent to go armed†trick bag. In the opinion of the AG that merely means “Readily accessible and available for use in the carrying out of purposes either offensive or defensive.â€

<O:p</O:p

If the gun is inaccessible or unavailable for use; you could make an argument. But carrying a loaded firearm (or one that could be loaded quickly) is a crime in Tennessee.

<O:p</O:p<O:p</O:p

Under these provisions, it is unlawful to carry a firearm with the intent to go armed. Tenn.

Code Ann. § 39-17-1307(a)(1) (2002). Pursuant to the statute, the carrying of firearms is prohibited when it is carried in a manner so as to be “readily accessible and available for use in the carrying out of purposes either offensive or defensive.†Kendall v. State, 101 S.W. 189 (Tenn. 1906). A person wishing to circumvent this general prohibition may obtain a lawful permit, subject to the directives of Tenn. Code Ann. § 39-17-1351.

[Guest theolog]

Everything I write in the next two posts is basically a restatement of post #33. Good job, Dave!

If police can't stop to check if a driver is licensed (a privledge), why can they do the same to to someone carrying a firearm (a supposed right)?

Because openly carrying a driver's license doesn't often result in people calling 911 to report a "man with a license," whereas openly carrying a firearm in suburban or urban areas often results in people calling 911 to report a "man with a gun."

These cops didn’t stop a guy on the street and harass him; they were called by a citizen that had concerns and wanted them to respond.

Exactly. Unfortunately, the "call for service" argument isn't often understood by proponents of open carry.

I've responded to a couple dozen legal open carry "man with a gun" calls in my career. They all went something like this:

"Hey, what's up, officer?"

"Nothing sir, we got a call about you carrying a weapon."

"Is that illegal?"

"Nope. Not at all. But we got a call. How do you like that Glock?"

"Man, I love it."

"Where do you shoot?"

"XYZ range."

"Oh yeah? Me too. Maybe I'll see you there."

"That'd be cool."

"Hey, you wouldn't mind me checking your ID real quick, would you?"

"No sir, not at all."

"Thanks, buddy, and I appreciate your understanding."

"Thanks for being cool about this, officer."

"No problem. See you at the range."

Edited September 18, 2009 by theolog

[Guest theolog]

But how far are the cops supposed to go when someone is not committing any crime, just because someone called?

Far enough to confirm that "a crime is not afoot." The courts have held that 20-30 minutes is "reasonable" for a traffic stop. I'd be inclined to think that a reasonable person would think that 3-5 minutes is reasonable for an open carry complaint. It isn't harassment, it's an investigation of suspicious behavior. Carrying openly is out of the ordinary, and therefore a "suspicious condition." Making brief contact with a citizen isn't unreasonable.

If a person doesn't like others chewing bubble gum and calls the police about someone blowing a bubble, are the officers supposed to detain the person, take his bubble gum and ask him a bunch of question, just because someone called them?

Poor example. Bubble gum is almost universally socially acceptable and people are used to seeing it. Right or wrong, carrying a weapon is not a social norm and people are not used to seeing it, and you can expect that someone will call.

[Fallguy]

theolog there is a difference between NM and TN.

I agree OCing in TN can cause intreaction with a LEO and that is fine, as there could be a crime if the person doesn't have a HCP.

In NM though there is no a crime afoot because of simply OCing a handgun. The "call for service" in this case was to ask the man to leave. That is all that needed to be done.

Also I don't think it was simply the talking to the man the judge found unreasonable, it was the detaining and searching him....and that was because he was commiting no crime and was not supspected of commiting one.

Edited September 19, 2009 by Fallguy

[Guest theolog]

I actually live in North Carolina now which is a legal open carry state, but it STILL results in calls for service. Although there is also a law called "going armed to the terror of the citizens." It is rarely charged, and the state's courts haven't really figured out what to do with it because it is a common law offense that almost never gets to court. Incidentally, no one actually has to BE "terrified." It is akin to a "brandishing" charge in other states, I suppose.

I'm not trying to convert you, I'm just trying to offer another viewpoint as someone who has to answer these kinds of calls so you can see it from this side just for a second. People complain that cops aren't human enough, but when they want to bash them, they act like police officers should be senseless robots. If the courts later determine they did something wrong on a 10-minute call, people think the only option is to fire them.

As far as "all they needed to do was ask him to leave," that just doesn't reflect reality or how police contacts actually go down. Law enforcement officers aren't handicapped in what they do or how they handle a call based on what the original intent was or what the wishes of the caller were. I'm not arguing this particular case one way or the other, I'm merely saying that trying to crucify these guys, make examples of them, or expect some kind of narrow, inhuman handling of calls isn't fair or informed. There is very little black and white in dynamic environments. Change one minor fact and the WHOLE example changes drastically.

Example: There was recently a call for an improperly parked vehicle in Memphis (at least I think that's where it was). Officers could have responsed and said "move the car, have a nice day." Turned out the guy was a 20-year-old MPD recruit who was there to have sex with a 15-year-old he met online. Needless to say he's out of a job and in jail. Without digging a little deeper, HE would have been "deep" in a teenage girl.

As a side note, without police officers making decisions, both good and bad, we'd never have any case law!

[Fallguy]

I'm not trying to speak in general, for all states. Just NM and somewhat in TN. If you look back my first post was this ruling wouldn't help anyone in TN much or for that matter anyone is a state where OC requires a permit. But again in NM OC does not require a permit ....it is just as legal as blowing bubbles... I mean what are LEOs supposed to do if someone calls to say someone is wearing a AC/DC shirt in the movie theater just because the owner dosen't like AC/DC? They can tell the guy to leave for the owner, but are they supposed to hold him and search him too...remember he is not violating any law and apparently is not suspected of violating a law.

I agree the orginal call does not limit what the officers can do.

The funniest thing about this whole thread to me is that...some of the very ones that mention how the written law isn't the only thing to consider, that there is also case law, are the ones that are arguing the opposite point of what is now case law. And not case law from a local general sessions judge or even a state court, but a US district court judge.

Not trying to argue with you theolog, just trying to be more specifics od this case and not genrealities...but you are right about one of the ways case law comes about...

[Guest theolog]

No argument implied here either, bro, I thrive on adult conversation. (not THAT kind...)

But my answer still remains the same. Open carry state or no open carry state, law enforcement's response to a call will be the same. And again, my answer applies to NC, which IS an open carry state.

You're missing the point that bubble blowing isn't going to result in a 911 call and gun carrying will - though I admit one is as legal as the other here. But it is still out of the ordinary and will result in someone calling unless you're in a rural area.

Edited September 19, 2009 by theolog

[Fallguy]

If your answer is to detain and search ever OCer you come across, apparently your answer will not fly in NM though. I agree a call to LE will/should result in a response, but that doesn't allow LEOs to violate the constitution once they get there.

I understand OCing a gun will result in more calls than bubble blowing, I'm just saying that in NM if either on of those things are all a person is doing, they are not commiting a crime and can not or at least should not have their rights violated.

[Guest theolog]

If your answer is to detain and search ever OCer you come across, apparently your answer will not fly in NM though. I agree a call to LE will/should result in a response, but that doesn't allow LEOs to violate the constitution once they get there.

I understand OCing a gun will result in more calls than bubble blowing, I'm just saying that in NM if either on of those things are all a person is doing, they are not commiting a crime and can not or at least should not have their rights violated.

And now I know that you didn't comprehend a single word that I wrote.

[Fallguy]

And now I know that you didn't comprehend a single word that I wrote.

...and apparently you don't understand the judge's ruling. see here

He compares a call of man OCing a gun in NM as the same as if there was a call a man possed a wallet. Not quite as nice a site a bubble blowing though

You can do whatever you want, maybe the next court case we read about will be about someone from this board violating a citizens rights.