Long discussion with the sponsor of last year's Parking Lot Bill

[Guest nicemac]

Or, if it’s a criminal complaint (as in a theft case) they can call the Police and keep you from leaving or entering your vehicle until they get there.

How can your company detain you? They can fire you if you leave, but they can't detain you against your will.

[Oh Shoot]

How can your company detain you? They can fire you if you leave, but they can't detain you against your will.

Gomer sez, "Citizen's arrest!"

- OS

[Sky King]

There are a number of other exemptions to the FL parking lot law, too, where workers cannot have firearms in their vehicles. Most glaringly, school property. So I wouldn't think this should be the model touted for TN.

- OS

There are parts of the Florida law that are not applicable in Tennessee and parts that we would not want. That does not disqualify it from being a great starting point to model a similiar law. Your example of the school property provision is a good example of a provision we would not want. It also may not even be relative as, if I am not mistaken, Tennessee specifically allows me to keep a firearm in my vehicle on school property as long as I do not remove the firearm from the vehicle.

What Florida has are provisions that protect the employee and the employer. The civil liability provision, in my opinion is at the core of employers and property owners objections. They can claim their concern for employee safety all they want but their main concern is their financial bottom line and that means protecting themselves from civil liability. They couldn't care less about me.

Florida also specifcally prohibits an employer or potential employer from making firearm ownership or permit posession a conditon of employement AND they can not even ask about it.

I only think that Florida has one of the better laws on the books. Any legislator who drafts a bill would be remis if they didn't look at ALL the state laws and "cherry pick" the laws for the good points and leave out what we don't want or can't use.

[Oh Shoot]

... It also may not even be relative as, if I am not mistaken, Tennessee specifically allows me to keep a firearm in my vehicle on school property as long as I do not remove the firearm from the vehicle. ...

Well, as a non-student adult. And implies that it must be unloaded.

But mainly, the TN statute does not prevent you from being fired for exercising that "right" if you work there, which is the main import of changing the law in the first place, to allow employees to possess in cars according to the manner in which it is otherwise legal anywhere else.

- OS

[DaveTN]

How can your company detain you? They can fire you if you leave, but they can't detain you against your will.

Sure they can, if it’s a criminal complaint. But many won’t. You would have be a dumbazz to leave if the Police have been called.

[JAB]

People talk about property rights but allowing places to post parking areas also remove's our right to carry as we travel. Should property rights exceed our right to remain safe when off their property?

More to the point, why should their property rights negate ours? My vehicle is my property. The things inside my vehicle are my property and, as long as those things remain inside my vehicle while parked on their property then what is inside my vehicle is my business. It doesn't matter where my vehicle is parked, it and its contents remain my property - so how about a little protection for property rights here?

That is the tact I believe would work better - and be more valid - than a bill specifically protecting firearms in a vehicle.

[Guest nicemac]

Sure they can, if it’s a criminal complaint. But many won’t. You would have be a dumbazz to leave if the Police have been called.

On what grounds can a private citizen (my employer) detain me against my will?

They can tell me I can't leave, but what legal right do they have to actual prevent me from doing so?

They (a private citizen) can prevent me from entering my car?

They don't have a right to physically restrain me, so what happens next?

I am not trying to be a smart-alec. I want to understand…

[Fallguy]

On what grounds can a private citizen (my employer) detain me against my will?

They can tell me I can't leave, but what legal right do they have to actual prevent me from doing so?

They (a private citizen) can prevent me from entering my car?

They don't have a right to physically restrain me, so what happens next?

I am not trying to be a smart-alec. I want to understand…

I really don't think any employer would do this except through security if they have it....but any citizen can make an arrest and can use whatever force necessary (except deadly force) to affect the arrest and hold you until you can be turned over to LE.

[DaveTN]

On what grounds can a private citizen (my employer) detain me against my will?

They can tell me I can't leave, but what legal right do they have to actual prevent me from doing so?

They (a private citizen) can prevent me from entering my car?

They don't have a right to physically restrain me, so what happens next?

I am not trying to be a smart-alec. I want to understand…

Let’s say your employer has evidence that you have stolen their property. Tennessee law allows “Arrest by a private Personâ€. Read Title 40 Chapter 7 “Arrest†also read the part about detention of a suspect by a Merchant or Police Officer.

I doubt many employers would even try to use force to stop you. They simply call the Police and have you arrested.

Tennessee law allows (as do most states) for the detention of a criminal. Citizens just don’t have the civil liability protections a Police Officer has.

[macville]

Let’s say your employer has evidence that you have stolen their property. Tennessee law allows “Arrest by a private Person”. Read Title 40 Chapter 7 “Arrest” also read the part about detention of a suspect by a Merchant or Police Officer.

I doubt many employers would even try to use force to stop you. They simply call the Police and have you arrested.

Tennessee law allows (as do most states) for the detention of a criminal. Citizens just don’t have the civil liability protections a Police Officer has.

I thought citizens only have the power to detain if it's a felony?

[Fallguy]

I thought citizens only have the power to detain if it's a felony?

Nope

40-7-109. Arrest by private person -- Grounds.

(a)

A private person may arrest another:

(1)

For a public offense committed in the arresting person's presence;

(2)

When the person arrested has committed a felony, although not in the arresting person's presence; or

(3)

When a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed the felony.

(

A private person who makes an arrest of another pursuant to the provisions of §§ 40-7-109 -- 40-7-115 shall receive no arrest fee or compensation for the arrest.

39-11-621. Use of deadly force by private citizen.

A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, §§ 39-11-611 and 39-11-612.

LexisNexis® Custom Solution: Tennessee Code Research Tool

Edited January 11, 2012 by Fallguy

[Guest nicemac]

OK, I was thinking along the lines of having a gun in your car against corporate policy, not committing a felony while at work. If they suspect I have a gun in my car and I refuse to allow them to search it, they can just fire me. But having a gun in my car (In my case–I am a hcp holder) is perfectly legal. They could not legally prevent me from simply getting into my car and leaving. And they cannot search my car. Again, I would lose my job, but they have no rights to do anything (even look) inside my vehicle without my consent.

[Fallguy]

OK, I was thinking along the lines of having a gun in your car against corporate policy, not committing a felony while at work. If they suspect I have a gun in my car and I refuse to allow them to search it, they can just fire me. But having a gun in my car (In my case–I am a hcp holder) is perfectly legal. They could not legally prevent me from simply getting into my car and leaving. And they cannot search my car. Again, I would lose my job, but they have no rights to do anything (even look) inside my vehicle without my consent.

True...no "crime" no arrest and policy is not law. But as you said....more than likely you'd be fired.

[E4 No More]

But they'd better be right otherwise you'd own them in a lawsuit.

[Sky King]

What people need to keep in mind in all this is that protecting people from searches isn't enough. Tennessee is an "Employment at Will" state. This means in short, your boss doesn't need a reason to fire you. You don't have a lawsuit if they don't state any reason, (which they don't have to do) for your termination. ALSO, you have no grounds if you are terminated for violation of your terms of empolyment. If you are obligated by terms of employement to consent to a search of your vehicle while on company property, you are toast in regards to your job if you refuse.

Gun or NO gun, if you refuse the search, thus violating your terms of employment, they don't need to find ANYTHING, they don't need to do the search, YOUR ARE GONE. The whole point of this legislation is to prevent an employer from taking ANY punitive action against the employee or visitor for keeping a legal firearm in the private vehicle. If they can not take any action against you for having the firearm, I don't CARE if they search my car.

Many employers, such as mine also have a VERY prominate sign at the entrance to the parking lots that vehicles are subject to search. To me, and while I am no lawyer, that tells me that if I continue past that sign, I have essentially agreed to those terms and consent to a search.

So search or no search, the right to keep the firearm needs to be protected so if they DO search, there is nothing they can do about it.

Edited January 11, 2012 by Sky King

[RobertNashville]

...

I think your post goes to the heart of the matter, especially with regards to the employee/employer situation. What I think most of us want (who do want this) is to be able to carry our legally transported weapons in our vehicles to and from wherever we need to go without fear of being charged with a crime and/or being fired from our employment (at least I know that has been my objective).

One reason I want this is simply because I sometimes participate in shooting events during the work week after work and, for logistics purposes, I need to be able to carry the weapon(s) and ammunition I need in order to participate, inside of my vehicle when I leave home in the morning because going home after work and then to where I need to be to participate (skeet shooting, etc.) would make my participation impossible because of the distance/travel time involved.

The other reason is that, as an HCP holder, I want to be able to carry my loaded weapon from home to/from wherever I need to go whether that’s the parking lot of an employer or some other business/shopping center, etc. While I do have concerns about being disarmed while INSIDE said business or employer’s offices, I’m more concerned about my commute to/from those places…maybe I’m being overly paranoid or maybe not paranoid enough; I don’t know!

Because of the “right to work state†issue/company “policy†issue, I think to make such a law accomplish what I think we want, there will have to be several changes in the law including; but not limited to:

“Signage†against firearms must be rendered meaningless with regards to any sort of parking lot/parking space…in other words, a restaurant, for example, can still ban firearms (by policy and/or by signage) from being inside their actual restaurant but not from being inside the vehicle while parked in whatever parking lot their customer might use. Same for employers…they can post signage to ban firearms inside their actual businesses/factories and/or ban them as a matter of policy but not be able to ban then from being inside a vehicle while parked in a parking lot provided for employees, customers, etc. But…this isn’t enough.

What I think is also needed is that must be an absolute prohibition against anyone being able to search or compel a search or even ask to search a vehicle of an employee, etc. (except of course by a law enforcement officer who is doing so based on just cause/warrant). In other words, no employer could even legally ask to search a vehicle or demand you “voluntarily†allow vehicle searches as a condition of employment. That is the only way I know of that would truly protect an employee from termination simply because of a company “policy†against firearms…what I mean by that is that a law saying you can’t be fired for having a legally possessed/transported firearm in your vehicle while parked in an employer’s parking lot sounds good but so what? If they can still “request†to search your vehicle and find a firearm they can just fire you later and not even say why so in that case, we haven’t gained anything.

[RobertNashville]

No you don’t, that was settled in the last two gun cases the SCOTUS heard. It’s up to Tennessee state law when and where you carry, and they say it’s a crime.

We will never get the “right to bear arms†or “Constitutional Carry†if people think we already have it.

There is no immunity unless it’s specified. Do a search on “Amanda Beech vs. Hercules Drilling Coâ€. She got 1.2 million dollars because an employee shot and killed her husband while showing him a gun at work. The company had signs and a written policy against guns and still had to pay.

Actually, we DO have the RIGHT to go armed...however, we've allowed our legislature in Tennessee to infringe on that right to a significant degree - perhaps that's a distinction without a difference??? In any case, I hope that what we are moving toward is a restoration of the rights we already have as human beings and as recognized in the U.S. Constitution...shame on us (past and present) that we've allowed our state to infringe on our rights for so long.

As to the immunity issue, I've not problem with granting immunity except for provable negligence on the part of the employer/business.

[JAB]

Gun or NO gun, if you refuse the search, thus violating your terms of employment, they don't need to find ANYTHING, they don't need to do the search, YOUR ARE GONE. The whole point of this legislation is to prevent an employer from taking ANY punitive action against the employee or visitor for keeping a legal firearm in the private vehicle. If they can not take any action against you for having the firearm, I don't CARE if they search my car.

And there is our difference of opinion. I DO care if they search my car. No, there is nothing in there that is illegal but I have no more desire to allow an employer to search my car than I do to have them come to my house and do a room to room search. That is why I believe there should be legal protections against employment being conditional to agreeing to 'voluntary' searches.

Many employers, such as mine also have a VERY prominate sign at the entrance to the parking lots that vehicles are subject to search. To me, and while I am no lawyer, that tells me that if I continue past that sign, I have essentially agreed to those terms and consent to a search.

An employer could hang a sign at the entrance to their parking lot stating that by entering the lot you agree to be anally violated at the property owner's discretion but that doesn't make the sign valid.

So search or no search, the right to keep the firearm needs to be protected so if they DO search, there is nothing they can do about it.

If a search is conducted, a firearm is found and the employer wants to get rid of the 'gun toting' employee then, TN being an at will state, they could still terminate the employee regardless of specific protections for legal firearms. If, however, the search were prohibited in the first place then the employer would never know about the firearm and would have no reason (well, at least no firearm related reason) to want to fire the employee. Sure, if an employer just wanted rid of an employee, anyway, the employer could simply fire the employee but I still think the best legislation would prohibit the search in the first place.

Edited January 12, 2012 by JAB

[Sky King]

And there is our difference of opinion. I DO care if they search my car. No, there is nothing in there that is illegal but I have no more desire to allow an employer to search my car than I do to have them come to my house and do a room to room search. That is why I believe there should be legal protections against employment being conditional to agreeing to 'voluntary' searches.

Ok, maybe a better way to have phrased it would have been, "it doesn't matter if they search my car". NO, I don't have any desire for them to search either. What I am saying is regardless of the reason or circumstances for the search, the possession of the firearm needs to be protected.

An employer could hang a sign at the entrance to their parking lot stating that by entering the lot you agree to be anally violated at the property owner's discretion but that doesn't make the sign valid.

Ok, let's get a bit more real. There is such thing as implied consent.

If a search is conducted, a firearm is found and the employer wants to get rid of the 'gun toting' employee then, TN being an at will state, they could still terminate the employee regardless of specific protections for legal firearms. If, however, the search were prohibited in the first place then the employer would never know about the firearm and would have no reason (well, at least no firearm related reason) to want to fire the employee. Sure, if an employer just wanted rid of an employee, anyway, the employer could simply fire the employee but I still think the best legislation would prohibit the search in the first place.

Yes you are right. even if the firearm possession were protected, if they want to fire you, they can. However the possession still needs to be protected because even if general searchs were prohibited by law, they could still call law enforcement, make a case that you have stolen property in your vehicle and give the police probable cause to conduct the search.

The possession needs to be protected so in the above scenerio, the gun, being YOURS, is not stolen and is legally possessed and having it in your car on your employers property is protected. Yes, they can still fire you without stating a reason because we live in an "employement at will" state.

BUT, in the above described scenerio, if the search is conducted WITH law enforcement under probable cause AND the gun is found, while not the object of the search, if not protected, you are instantly toast even if no stolen property is found.

So I could only say that probably both things need to be addressed, they possession of firearms AND the search issue.

[JAB]

Ok, let's get a bit more real. There is such thing as implied consent.

In college, one of my classmates had some damage to her vehicle in a Walmart parking lot because the store failed to wrangle their carts. She went to the manager and politely asked what kind of arrangement they could work out to get Walmart to pay part of the cost for fixing the damage. There was no argument that the damage took place in their lot but the manager simply replied that they have signs in their parking lot declaring that Walmart is not responsible for damages due to carts, etc. She took them to court and the judge ruled that Walmart was responsible for the damages and had to pay 100% of repairing her car. The Walmart lawyers argued that the sign made them exempt and the judge responded, basically, that it didn't matter what their sign said because posting something on a sign doesn't make it legally binding.

This wasn't just her story of how the case turned out - the class I had with her was a linguistics class called Language and the Law so she brought a video of the court proceedings in and we viewed part of it in class. So, I say again, a business (employer) can put up a sign declaring whatever the business (employer) wants to declare - that doesn't make the sign valid.

Edited January 26, 2012 by JAB

[Fallguy]

In college, one of my classmates had some damage to her vehicle in a Walmart parking lot because the store failed to wrangle their carts. She went to the manager and politely asked what kind of arrangement they could work out to get Walmart to pay part of the cost for fixing the damage. There was no argument that the damage took place in their lot but the manager simply replied that they have signs in their parking lot declaring that Walmart is not responsible for damages due to carts, etc. She took them to court and the judge ruled that Walmart was responsible for the damages and had to pay 100% of repairing her car. The Walmart lawyers argued that the sign made them exempt and the judge responded, basically, that it didn't matter what their sign said because posting something on a sign doesn't make it legally binding.

This wasn't just her story of how the case turned out - the class I had with her was a linguistics class called Language and the Law so she brought a video of the court proceedings in and we viewed part of it in class. So, I say again, a business (employer) can put up a sign declaring whatever the business (employer) wants to declare - that doesn't make the sign valid.

No doubt a sign doesn't release a business of any liability simply by posting it. Many times even signed release forms don't release a place of liability. I get updates from the TN Court System and the Court of Appeals recently upheld a ruling by a lower court that the operator of a mechanical bull was liable for injuries to a patron, even though he had signed a release form. Now there was some sort of problem with the operator and/or machine so that is why I think they were held liable...had it been operated in a "normal" manner, he may not have prevailed. My point though is even signed forms don't necessarily release someone from liability depending upon the circumstances....

[RobertNashville]

One thing I know, if negligence is involved, no amount of signage or a stack of signed releases is going to save the one who was negligent.

[DaveTN]

That is why I believe there should be legal protections against employment being conditional to agreeing to 'voluntary' searches..

Where’s the business owners rights? Not only does he have the right to control what goes in and out of his property, but he can be held liable for a safe work environment. He also has a right to keep his employees from stealing him blind.

Entitlement…. Not only does everyone want to tell an owner how to run their business, but they want to sue them the minute something goes wrong on their property whether they had anything to do with it or not.

I would feel better about these bills if the state of Tennessee recognized the right to carry, but they do not; it is a crime. If I was a business owner I would be pizzed that just because you pay the state your money, that makes someone qualified to carry a gun in their eyes, and they think they are going to cram that down the throat of business owners. I’d tell the state that I will acknowledge the right to carry as soon as they do; until then they could go pound sand.

[JAB]

Where’s the business owners rights? Not only does he have the right to control what goes in and out of his property...

And I have the right to control who and what goes in and out of my property, i.e. my vehicle. A business owner's rights should not trump my property owner's rights. If a firearm or whatever else comes out of my car while in the employer's parking lot THEN their right to control what is on their property kicks in. As long as it stays in my car then it is bounded by MY property, regardless of where the car is parked.