Non-carrying wife in the same car?

[busted knuckles]

I get out to run into a liquor store, leaving her locked in the car. Liquor store is posted, so I go back to the car and take the pistol and put it in the console of the car. At this point, while I'm in the store, would she be considered illegally armed?

[Guest TargetShooter84]

If loaded, yes

If unloaded, no

but your liquor owner may not like seeing you pull your piece out and unloadin' it....

[Guest TargetShooter84]

Please read this thread.

http://www.tngunowners.com/forums/handgun-carry-self-defense/41415-her-glovebox-my-gun.html

[JayC]

I get out to run into a liquor store, leaving her locked in the car. Liquor store is posted, so I go back to the car and take the pistol and put it in the console of the car. At this point, while I'm in the store, would she be considered illegally armed?

The short answer, under TN law she could be charged unless she has a valid permit. (IANAL)

[mikegideon]

I get out to run into a liquor store, leaving her locked in the car. Liquor store is posted, so I go back to the car and take the pistol and put it in the console of the car. At this point, while I'm in the store, would she be considered illegally armed?

My number one rule: Don't give money to anti's. But, if you insist, you could have just brought her into the store with you.

[mikegideon]

If loaded, yes

If unloaded, no

but your liquor owner may not like seeing you pull your piece out and unloadin' it....

F the liquor store owner. There's a unposted store right down the street.

[Guest TargetShooter84]

F the liquor store owner...

I was waiting for that kind of comment from one of you guys....talk about quick one! hahaha

[busted knuckles]

Thanks for the replies. I went ahead and went in there for convenience, but will have to go downtown to Frugal McDougals next time.

[mikegideon]

Thanks for the replies. I went ahead and went in there for convenience, but will have to go downtown to Frugal McDougals next time.

High octane beer, huh? That's why I always went in there. I PM'ed a copy of my email to those clowns.

[midtennchip]

I must have missed that first thread on this issue. Nevertheless, I think there is something most people are missing on this issue.

TCA 39-17-1307(a)(1) says "a person commits an offense who carries with the intent to go armed . . ." The issue of possession is not contained in 39-17-1307(a). The issues of possession are dealt with in 39-17-1307(-(f), which I don't think would be applicable the facts in this thread. She did not "carry" the gun and likely didn't have the "intent to go armed." So, I think there would be numerous defenses to charges under 39-17-1307 (if such charges were ever brought).

As others have mentioned, I'm not sure why anyone would ever find out that the gun is in the console. If a search of the car was conducted though, I think there would be some issue about whether a search was justifiable (unless there were other facts).

[JayC]

I think if you look at case law you'll see that there are lots of cases each year where somebody is prosecuted for just having a loaded handgun in the vehicle with them. Virtually all of them are charged under 39-17-1307a and b.

Also the title for 39-17-1307 is "Unlawful carrying or possession of a weapon"

I agree the intent to go armed language is somewhat vague... probably if she didn't know the weapon was in the vehicle she might not be convicted... but otherwise having a loaded firearm in the car is going to be a violation of 39-17-1307a.

I must have missed that first thread on this issue. Nevertheless, I think there is something most people are missing on this issue.

TCA 39-17-1307(a)(1) says "a person commits an offense who carries with the intent to go armed . . ." The issue of possession is not contained in 39-17-1307(a). The issues of possession are dealt with in 39-17-1307(-(f), which I don't think would be applicable the facts in this thread. She did not "carry" the gun and likely didn't have the "intent to go armed." So, I think there would be numerous defenses to charges under 39-17-1307 (if such charges were ever brought).

As others have mentioned, I'm not sure why anyone would ever find out that the gun is in the console. If a search of the car was conducted though, I think there would be some issue about whether a search was justifiable (unless there were other facts).

[busted knuckles]

These last two posts are very interesting. She and I discussed it more today and have decided to get off the can, shop for her a gun that She's comfortable with, let her go shooting with me more, and get her permitted.

Nevertheless, my scenario is thought provoking and I'm sure it happens every day.

[-Bristol-]

Me and the wife were permitted together and it really does simplify things, puts us both on the same page. She doesn't carry often and I can't get her past her Walther p22 she loves, but otherwise, it's all good.

[Worriedman]

Needs to be an issue we work on in the Legislature. I find it ludicrous that in a vehicle I own, I can not leave my loaded weapon locked up inside with my wife there. Seems the only time it would be an issue is if she had to use it, and then TN statues say there is no prosecution for defending one's self. If I am licensed to carry, and a posted sign precludes my ability to carry inside someplace I need to be, I can't see the sense in making the wife stand outside the car while I go in, and if you can, you obviously do not know my wife.

What do I have to do, take her set of car keys away and make her stand in the rain, snow or heat in a parking lot while I go inside a posted place, (Dr.'s office, school etc.)? As it would be legal to give her a shotgun with an open breech, and let her hold a handful of buckshot, it seems this is a little beyond the pale.

[midtennchip]

I think if you look at case law you'll see that there are lots of cases each year where somebody is prosecuted for just having a loaded handgun in the vehicle with them. Virtually all of them are charged under 39-17-1307a and b.

Also the title for 39-17-1307 is "Unlawful carrying or possession of a weapon"

I agree the intent to go armed language is somewhat vague... probably if she didn't know the weapon was in the vehicle she might not be convicted... but otherwise having a loaded firearm in the car is going to be a violation of 39-17-1307a.

Yes, there are some cases where people are prosecuted under 39-17-1307(a) and (. However, ( is the convicted felon prohibition (which I assume does not apply to this set of facts). Also, ( is the one with the "possession" prohibition. I cannot say I have exhaustively researched cases involving 39-17-1307, but I have yet to find one that doesn't involve more factual issues (ie: prior felony conviction, the effect of restoration of rights, or similar issue) that would raise the "possession" issued that are not contained in 39-17-1307(a). If we are talking only about (a), then I think "possession" is a different issue.

Also, keep in mind that, if "possession" alone is the standard, it would likely be illegal for the non-HCP holder to even be in the car to begin with if the gun is kept in the console. The girlfriend or wife has just as much control (ie: "possession") over the weapon with the HCP holder in the car as she does when the HCP holder is not in the car unless the HCP holder has the gun on his person.

[Worriedman]

If possession via proximity were the sole criteria for prosecution , would not a loaded handgun in a home during the permit holder's absence be the same thing if a non-permit holder was present (i.e. wife, girlfriend, parent)?

[kb4ns]

If possession via proximity were the sole criteria for prosecution , would not a loaded handgun in a home during the permit holder's absence be the same thing if a non-permit holder was present (i.e. wife, girlfriend, parent)?

A home and a car are two totally different ballgames. No one needs a permit in their home.

[JeffL]

Thanks for the replies. I went ahead and went in there for convenience, but will have to go downtown to Frugal McDougals next time.

McDougal's FTW. I used to go to Midtown until they decided to post last year. I'm glad I switched. If you see a guy in Frugal's with a bottle of Knob Creek and a fifth of Gulden Draak that's probably me.

[Worriedman]

A home and a car are two totally different ballgames. No one needs a permit in their home.

Not trying to be argumentative, but, it appears that there is no difference in your house and your vehicle according to TN State Law with respect to where you are entitled to provide for self defense. There is no mention of the requirement of a permit anywhere in the Public Chapter.

http://state.tn.us/sos/acts/105/pub/pc0210.pdf

Under Public Chapter 210:

AN ACT to amend Tennessee Code Annotated, Title 39, Chapter 11, Part 6, relative to the use of self defense and deadly force.

SECTION 1. Tennessee Code Annotated, Section 39-11-611, is amended by deleting the section in its entirety and substituting instead the following:

(a) As used in this section:

(1) “Curtilage” means the area surrounding a dwelling that is necessary, convenient and habitually used for the family purposes and for those activities associated with the sanctity of a person’s home.

(2) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed for or capable of use by people.

(3) “Residence” means a dwelling in which a person resides either temporarily or permanently, or is visiting as an invited guest, or any dwelling, building or other appurtenance within the curtilage of such residence.

(4) “Vehicle” means any motororized vehicle that is self-propelled and designed for use on public highways to transport people or property.

(

(1) Notwithstanding the provisions of § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where such person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.

(2) Notwithstanding the provisions of § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where such person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

( The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

© The belief of danger is founded upon reasonable grounds.

Section 1 ©

© Any person using force intended or likely to cause death or serious bodily injury within a residence, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

Correct me if I am wrong, but I see nothing in the Public Chapter that requires a permit to avail a Citizen of the coverage of this Law, and, I see no differentiation in a person's home or vehicle, no more duty to retreat put forth regarding your vehicle than at your home or curtilage?

It would seem reasonable that if a HCP holder was required to leave his weapon in their vehicle for a short period to satisfy the Law re a posted business, that the weapon is under their control in their vehicle, and not some other person in the vehicle any more so than at their residence.

Edited June 28, 2010 by Worriedman

[Guest Boogieman]

I dont understand this type of question. Is every LEO out to get HCP holders and their spouses? If you explain the deal to the officer I am sure the issue will be dropped. If not you've found a bad apple.

[JayC]

There was a news article just this weekend about a guy in Cookeville having a loaded Jennings and loaded rifle in his pickup truck (along with some other stuff) non of which was on his person....

http://www.tngunowners.com/forums/newsworthy-reports/42197-has-anyone-read-story-going-armed.html

Note the charge:

Ward took Todd to the Putnam County jail, where he was charged with possession of weapons with the intent to go armed.

There is no mention that he is a felon... So I'm betting he's been charged under 39-17-1307a... This is a very common charge for anybody found to have a loaded firearm in the vehicle. Remember even hunters must transport their hunting rifles separate from the ammunition or risk a charge under 39-17-1307a (Unless they are HCP holders).

I agree the law is worded VERY poorly, and there are some cases where I'd be concerned about 39-17-1307a being used to charge/convict a non-hcp passenger in a vehicle even though the hcp was also present in the vehicle... The law as written isn't clear on this count IMHO.

Trust me the more people read these crazy laws we have, the more they will realize just how poorly written they are and how many loopholes they leave open... Property carry should be extended to our privately owned vehicles.

Yes, there are some cases where people are prosecuted under 39-17-1307(a) and (. However, ( is the convicted felon prohibition (which I assume does not apply to this set of facts). Also, ( is the one with the "possession" prohibition. I cannot say I have exhaustively researched cases involving 39-17-1307, but I have yet to find one that doesn't involve more factual issues (ie: prior felony conviction, the effect of restoration of rights, or similar issue) that would raise the "possession" issued that are not contained in 39-17-1307(a). If we are talking only about (a), then I think "possession" is a different issue.

Also, keep in mind that, if "possession" alone is the standard, it would likely be illegal for the non-HCP holder to even be in the car to begin with if the gun is kept in the console. The girlfriend or wife has just as much control (ie: "possession") over the weapon with the HCP holder in the car as she does when the HCP holder is not in the car unless the HCP holder has the gun on his person.

[JayC]

You're right there is largely no difference between your car and home when it comes to self defense... And if you use a firearm to defend yourself you can't be charged with possession.

BUT, there is a BIG difference between car and home when it comes to legally carrying a firearm without a permit. Read 39-17-1308a, there is a defense to 39-17-1307 for "Place of residence" and "Premises"... There is no such defense to carrying in your vehicle (without a permit).

So unless you've activity used the firearm in self defense (or displayed it in self defense - remember this means clearing the holster under current case law), you can be charged under 39-17-1307a for carry a loaded firearm...

Not trying to be argumentative, but, it appears that there is no difference in your house and your vehicle according to TN State Law with respect to where you are entitled to provide for self defense. There is no mention of the requirement of a permit anywhere in the Public Chapter.

http://state.tn.us/sos/acts/105/pub/pc0210.pdf

Under Public Chapter 210:

AN ACT to amend Tennessee Code Annotated, Title 39, Chapter 11, Part 6, relative to the use of self defense and deadly force.

SECTION 1. Tennessee Code Annotated, Section 39-11-611, is amended by deleting the section in its entirety and substituting instead the following:

(a) As used in this section:

(1) “Curtilage†means the area surrounding a dwelling that is necessary, convenient and habitually used for the family purposes and for those activities associated with the sanctity of a person’s home.

(2) “Dwelling†means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed for or capable of use by people.

(3) “Residence†means a dwelling in which a person resides either temporarily or permanently, or is visiting as an invited guest, or any dwelling, building or other appurtenance within the curtilage of such residence.

(4) “Vehicle†means any motororized vehicle that is self-propelled and designed for use on public highways to transport people or property.

(

(1) Notwithstanding the provisions of § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where such person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.

(2) Notwithstanding the provisions of § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where such person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

( The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

© The belief of danger is founded upon reasonable grounds.

Section 1 ©

© Any person using force intended or likely to cause death or serious bodily injury within a residence, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

Correct me if I am wrong, but I see nothing in the Public Chapter that requires a permit to avail a Citizen of the coverage of this Law, and, I see no differentiation in a person's home or vehicle, no more duty to retreat put forth regarding your vehicle than at your home or curtilage?

It would seem reasonable that if a HCP holder was required to leave his weapon in their vehicle for a short period to satisfy the Law re a posted business, that the weapon is under their control in their vehicle, and not some other person in the vehicle any more so than at their residence.

[Fallguy]

I dont understand this type of question. Is every LEO out to get HCP holders and their spouses? If you explain the deal to the officer I am sure the issue will be dropped. If not you've found a bad apple.

No...not "every" LEO, but it only takes one to cost you money, time and trouble.

[Fallguy]

@Worriedman There is no difference between your home and car when it comes to use of force and whether the presumption applies, but there is a difference on possession. As JayC pointed out..there is a defense to possession for being at your residence, just like having a HCP.

Use of force laws and the laws that cover the tools that may be used for that force are two different things.

[Worriedman]

@Worriedman There is no difference between your home and car when it comes to use of force and whether the presumption applies, but there is a difference on possession. As JayC pointed out..there is a defense to possession for being at your residence, just like having a HCP.

Use of force laws and the laws that cover the tools that may be used for that force are two different things.

Are you telling me that a LEO can search a parked car, with a person sitting in it at a store, for no apparent reason? What happened to Probable Cause as a precursor to search and seizure? A woman sitting in the rider's seat talking on a cell phone to the grand baby is a reason to bust in and search? If the weapon is out of sight in a console or glove box, how does the LEO know there is a violation occurring?

And as of this year, a non-permit holder can be in a vehicle, with an unloaded long arm, but, with ammo in proximity, just not in a clip, chamber or magazine. Your bare hand does not constitute a clip, chamber or magazine, and by Law, you can keep the ammo close if loose and not inserted in a clip, magazine or in the chamber.

Firearms and Ammunition - As enacted, allows person without handgun carry permit to transport rifle or shotgun in or on a privately-owned motor vehicle provided there is no ammunition in the chamber or cylinder and no loaded clip or magazine in the weapon or in close proximity to the weapon or any person. - Amends TCA Title 39, Chapter 17, Part 13.

Public Chapter Number 793

Edited June 28, 2010 by Worriedman