Confusion about TCA 39-17-1359 (posted property)

[10-Ring]

This law confuses me, it seems to me to say two different things...

1)

(3)(A) If a sign is used as the method of posting, it shall contain language substantially similar to the following:

AS AUTHORIZED BY TCA § 39-17-1359, POSSESSION OF A WEAPON ON POSTED PROPERTY OR IN A POSTED BUILDING IS PROHIBITED AND IS A CRIMINAL OFFENSE.

I take this to mean that in order to be legally binding the TCA code must be cited. as opposed to...

2)

© A building, property or a portion of a building or property, shall be considered properly posted in accordance with this section if one (1) or both of the following is displayed in prominent locations, including all entrances primarily used by persons entering the property, building, or portion of the property or building where weapon possession is prohibited:(i) The international circle and slash symbolizing the prohibition of the item within the circle

This leads me to believe that a gun buster is legally binding and that if I want to follow the law then I should not carry past a gun buster sign.

So why the confusion in the law? If a gun buster is legally binding then why is section b3a (the first section) even in the code?

[Guest bkelm18]

This law confuses me, it seems to me to say two different things...

1)

I take this to mean that in order to be legally binding the TCA code must be cited. as opposed to...

2)

This leads me to believe that a gun buster is legally binding and that if I want to follow the law then I should not carry past a gun buster sign.

So why the confusion in the law? If a gun buster is legally binding then why is section b3a (the first section) even in the code?

The property owner can choose either. If they choose the wording, then the wording must be very specific. Or they can just post a gun buster. Both are legally binding.

[redstategunnut]

Understand that legislation is made over the course of years with amendments that often result in inconsistencies and even irreconcilable provisions. If one were to rewrite it all at once to capture what the law presently is, it would be written differently.

I practice criminal law and I carry every day. Here's my advice: don't carry past any sign that even suggests your gun is unwelcome whether it technically complies or not. It just is not worth the risk.

[10-Ring]

Thanks a lot guys for clearing that up. I appreciate your suggestion redstate.

[Fallguy]

The property owner can choose either. If they choose the wording, then the wording must be very specific. Or they can just post a gun buster. Both are legally binding.

^^^What he said^^^

[Guest ArmaDeFuego]

I practice criminal law and I carry every day. Here's my advice: don't carry past any sign that even suggests your gun is unwelcome whether it technically complies or not. It just is not worth the risk.

I dunno, if its not properly posted I would probably carry past it. The law is very specific in the language that they need to use to be properly posted. If they dont use that language then I should be able to carry past it with no repercussions. If they saw my gun & asked me to leave I would leave. I mean I guess they could follow me into the parking lot & get my tag & call me in & try to have me arrested under the law. I dont think thats happened so far in Tennessee so it would be interesting to see how it comes out. If you have a halfway decent lawyer they should be able to show a judge that it wasnt properly posted according to the law.

With all that being said, what really needs to happen is that Tennessee should get on the ball & change the law to how it should be: they can put up a sign but it has NO force of law. Its like that in most states. They can put as many signs up as they want but you can still carry your gun in. If they see it & ask you to leave you have to or you can be arrested for trespassing. It should be like that here.

[Mike.357]

^^^What he said^^^

what about liquor stores with postings that are from the old law prohibiting liquor store carry

To me the wording is fairly specific now or use the gun buster sign. Either way it is not fair. A non HCP holder carries and yeah, he gets in trouble. But you or me gets it worse.

Typical F'd up statute

[Fallguy]

what about liquor stores with postings that are from the old law prohibiting liquor store carry

Those signs don't mean anything. They never did legally prohibit carry. Just warned of the consequences of violating the law...a law which no longer exsist.

To me the wording is fairly specific now or use the gun buster sign. Either way it is not fair. A non HCP holder carries and yeah, he gets in trouble. But you or me gets it worse.

Typical F'd up statute

yep

Other than since more than likely there would be other people arround which would make it a class A misdemeanor and the possibilty of jail time. Where a violation of 39-17-1359 is only a Class B and fine only.

Edited November 27, 2011 by Fallguy

[Fallguy]

I dunno, if its not properly posted I would probably carry past it. The law is very specific in the language that they need to use to be properly posted. If they dont use that language then I should be able to carry past it with no repercussions. If they saw my gun & asked me to leave I would leave. I mean I guess they could follow me into the parking lot & get my tag & call me in & try to have me arrested under the law. I dont think thats happened so far in Tennessee so it would be interesting to see how it comes out. If you have a halfway decent lawyer they should be able to show a judge that it wasnt properly posted according to the law.

With all that being said, what really needs to happen is that Tennessee should get on the ball & change the law to how it should be: they can put up a sign but it has NO force of law. Its like that in most states. They can put as many signs up as they want but you can still carry your gun in. If they see it & ask you to leave you have to or you can be arrested for trespassing. It should be like that here.

Since it is a misdemeanor, for a LEO to arrest you he has to witness it. Otherwise the owner would have to swear out a warrant.

[Makiaveli]

The first part says "if a sign is used" or words to that effect. So if you put up a sign it has to include the TCA. IE a sign that says "No guns allowed" isn't valid. The second part quoted is there to allow the use of the "gunbuster" symbol and have it be legally binding.

Or in other words, the first part specifies what must be included in a sign using words, the second codifies what symbols can be used legally.

With all that being said, what really needs to happen is that Tennessee should get on the ball & change the law to how it should be: they can put up a sign but it has NO force of law.

While I agree with the sentiment, you are arguing the state should take away the right of the property owner to prohibit guns on his property/within his place of business.

In other words, they aren't granting/protecting your rights, they are taking away someone else's. Is that something we really want to encourage?

Edited November 27, 2011 by Makiaveli

[Oh Shoot]

... A non HCP holder carries and yeah, he gets in trouble. But you or me gets it worse.

Typical F'd up statute

Actually, 1351 applies to non-HCP holders also, so he could be charged with both that and illegal possession/carry.

HCP holders are specifically mentioned in statute (obviously to make plain we are included), but it doesn't say only HCP holders, and first sentence says controlling entity may prohibit it for any person.

- OS

Edited November 27, 2011 by OhShoot

[macville]

While I agree with the sentiment, you are arguing the state should take away the right of the property owner to prohibit guns on his property/within his place of business.

In other words, they aren't granting/protecting your rights, they are taking away someone else's. Is that something we really want to encourage?

Here's the problem. The owner has the right to post any sign he wants. Many do, see the "no shoes, no shirt, no service", "no animals expect service animals", etc. But why have they suddendly been given the right to make their signs automatically have me breaking the law by walking past it? -1359 is the ONLY sign in TN which a store owner can put up that holds legal weight. If you walk past a no shoes sign with no shoes, nothing can be done legally to you until you are asked to leave and then you refuse (no trespassing signs don't count because the property isn't obviously open to the public, you have to be invited to come in.)

So yes, anyone should be able to post a no guns sign. However, I should be able to walk past it without fear of criminal penalty. If asked and I refuse to leave, then trespassing charges should be the only thing I could be charged with.

The other thing to consider is that -1359 is not constitutional according to our state constitution. Firearms laws can only be passed with a view to prevent crime. There is is no way that posting a store against legally carried firearms could prevent crime. The same could be said about many of our other carry laws. But what do I know? I actually think we should follow our constitution!

[TMF]

I dunno, if its not properly posted I would probably carry past it. The law is very specific in the language that they need to use to be properly posted. If they dont use that language then I should be able to carry past it with no repercussions. If they saw my gun & asked me to leave I would leave. I mean I guess they could follow me into the parking lot & get my tag & call me in & try to have me arrested under the law. I dont think thats happened so far in Tennessee so it would be interesting to see how it comes out. If you have a halfway decent lawyer they should be able to show a judge that it wasnt properly posted according to the law.

Sure, I guess that would be interesting to see how that worked out with anyone other than me. I'm not going to carry past any sign regardless of the legalities because I don't want the a$$pain that potentially is going to come with it. BTW, one of the better postings I've seen is at the Governor's Square Mall where it states on the entrance that carrying a firearm is prohibited unless authorized under state law. That covers everything it needs to. If a business was to post a meaningless sign that does nothing to prevent crime, this is what it should say.

[Fallguy]

Here's the problem. The owner has the right to post any sign he wants. Many do, see the "no shoes, no shirt, no service", "no animals expect service animals", etc. But why have they suddendly been given the right to make their signs automatically have me breaking the law by walking past it? -1359 is the ONLY sign in TN which a store owner can put up that holds legal weight. If you walk past a no shoes sign with no shoes, nothing can be done legally to you until you are asked to leave and then you refuse (no trespassing signs don't count because the property isn't obviously open to the public, you have to be invited to come in.)

So yes, anyone should be able to post a no guns sign. However, I should be able to walk past it without fear of criminal penalty. If asked and I refuse to leave, then trespassing charges should be the only thing I could be charged with.

The other thing to consider is that -1359 is not constitutional according to our state constitution. Firearms laws can only be passed with a view to prevent crime. There is is no way that posting a store against legally carried firearms could prevent crime. The same could be said about many of our other carry laws. But what do I know? I actually think we should follow our constitution!

Well.."No Smoking" signs carry the weight of law in TN too...

But I do agree a majority of TN laws violate the TN constitution.

According to TN law you don't even have a right to own/possess a firearm in your home. It is only a "defense" to proscution....

[DaveTN]

According to TN law you don't even have a right to own/possess a firearm in your home. It is only a "defense" to proscution....

Unlike other states Tennessee has no special requirements for having a gun in your home. I would think a Tennessee DA would have to be tired of his job to go directly against a SCOTUS decision.

A Murfreesboro Officer told me if they are called, they will ask the person to leave, if they refuse they will be arrested for trespass. (He had never seen that happen on a carry issue). They can also be given notice they are not allowed on the property anymore. Then they can be arrested if they return.

Some states require that a Police Officer tells you to leave before you can be arrested for trespass. I do not see anything that requires that in 39-14-405. So it appears that if a property owners sees you carrying and asks you to leave, and you refuse (posted or not) you are subject to arrest.

Has anyone in the state ever been cited yet under the gun posting law?

[JayC]

No reported cases... no easy way to see... there are no records I could find of a 39-17-1359 trial or conviction in Lexus Nexus.

Unlike other states Tennessee has no special requirements for having a gun in your home. I would think a Tennessee DA would have to be tired of his job to go directly against a SCOTUS decision.

A Murfreesboro Officer told me if they are called, they will ask the person to leave, if they refuse they will be arrested for trespass. (He had never seen that happen on a carry issue). They can also be given notice they are not allowed on the property anymore. Then they can be arrested if they return.

Some states require that a Police Officer tells you to leave before you can be arrested for trespass. I do not see anything that requires that in 39-14-405. So it appears that if a property owners sees you carrying and asks you to leave, and you refuse (posted or not) you are subject to arrest.

Has anyone in the state ever been cited yet under the gun posting law?

[Fallguy]

Unlike other states Tennessee has no special requirements for having a gun in your home. I would think a Tennessee DA would have to be tired of his job to go directly against a SCOTUS decision.

A Murfreesboro Officer told me if they are called, they will ask the person to leave, if they refuse they will be arrested for trespass. (He had never seen that happen on a carry issue). They can also be given notice they are not allowed on the property anymore. Then they can be arrested if they return.

Some states require that a Police Officer tells you to leave before you can be arrested for trespass. I do not see anything that requires that in 39-14-405. So it appears that if a property owners sees you carrying and asks you to leave, and you refuse (posted or not) you are subject to arrest.

Has anyone in the state ever been cited yet under the gun posting law?

Well I really hope a DA wouldn't go after someone in their own home either. My point was just the law on the books, not really how it has been applied.

I think you are right about 39-14-405 that an officer doesn't have to tell the person. I think it boils down to the person knowing they do not have the owners' consent to be back on the property. As I said in another thread, they way they do this in Columbia (at least at Walmart) is the manager tells the person in front of an officer and a piece of paper is filled out and a picture taken. That way the person doesn't have much of an argument that they didn't know.

[Guest pfries]

When my misses worked at the Cheveron here in Bristol once she informed someone to leave or they would be charged with trespassing it carried weight if law if the Police had to be called out. They would take her at her word over the alleged perp.

[Fallguy]

When my misses worked at the Cheveron here in Bristol once she informed someone to leave or they would be charged with trespassing it carried weight if law if the Police had to be called out. They would take her at her word over the alleged perp.

I'm not doubting what you say at all.....but

Trespassing is a misdemeanor offense.

For a LEO to make an arrest without a warrant, the offense must occur in his presence. So it's really not a matter of taking someone's word for it.

Now if the person was told to leave in the officers presence (including earlier in the day, week or whenever) and he didn't go (or in the case of earlier notification, was still on the property).....hook him up and take him away.

That is why some places do the paper...so the PD knows that a certain person doesn't have the consent of the owner to be on the property, that way they can be arrested for trespassing for just being on the property without having to be asked to leave by the property owner.

[Guest pfries]

It has more to do with when she would have to call the law back out.... most idiots that would not leave/listen were dumb enough to sit around while the LEO's came and end up with a citation, then they would also be warned from the LEO's that the next time they would take them in (now weather they could or not is another story more likley failing to comply with lawful order at that point)

[DaveTN]

For a LEO to make an arrest without a warrant, the offense must occur in his presence. So it's really not a matter of taking someone's word for it.

Sure it is. They can make an arrest if the person has been arrested by the victim\complainant or another bystander.

“Not in the presence of an Officer†is not a free pass to commit a crime.

[Fallguy]

Sure it is. They can make an arrest if the person has been arrested by the victim\complainant or another bystander.

“Not in the presence of an Officer” is not a free pass to commit a crime.

You are correct, if a citizen makes the arrest, they can take custody of the person.

[Makiaveli]

Here's the problem. The owner has the right to post any sign he wants. Many do, see the "no shoes, no shirt, no service", "no animals expect service animals", etc. But why have they suddendly been given the right to make their signs automatically have me breaking the law by walking past it? -1359 is the ONLY sign in TN which a store owner can put up that holds legal weight. If you walk past a no shoes sign with no shoes, nothing can be done legally to you until you are asked to leave and then you refuse (no trespassing signs don't count because the property isn't obviously open to the public, you have to be invited to come in.)

So yes, anyone should be able to post a no guns sign. However, I should be able to walk past it without fear of criminal penalty. If asked and I refuse to leave, then trespassing charges should be the only thing I could be charged with.

The other thing to consider is that -1359 is not constitutional according to our state constitution. Firearms laws can only be passed with a view to prevent crime. There is is no way that posting a store against legally carried firearms could prevent crime. The same could be said about many of our other carry laws. But what do I know? I actually think we should follow our constitution!

Valid points. I just hate the idea of passing laws to pass laws. Then some more laws to fix those laws.

My point was and is, taking away one group's rights to preserve another's rights is as wrong as taking away a single group's rights.

Never intended to imply I agreed with the current crop of laws. If I did, then I seriously misspoke.

[Makiaveli]

You are correct, if a citizen makes the arrest, they can take custody of the person.

Aren't there limits on citizen's arrests? As in you can't arrest some one for a misd unless it involves violence etc? Point being, just because I detain you, doesn't mean you are the one going to jail when the cops show up.

[Guest ArmaDeFuego]

In other words, they aren't granting/protecting your rights, they are taking away someone else's. Is that something we really want to encourage?

When it comes to a store trying to take away my 2nd amendment right, ABSOLUTELY. I should be able to carry anywhere. If they cant put up a sign that says "No women allowed" or "No African-Americans allowed" or anything like that, then they also should not be able to put up a sign prohibiting the lawful carrying of firearms.