A Cop's Point of View

[JayC]

TCA 39-17-1308a :

 

(a) It is a defense to the application of § 39-17-1307 if the possession or carrying was:

 

It's illegal for you to have a firearm in your home under state law, and you only have a defense in court if the police arrest you and charges are filed.  HCP is also listed as one of the defenses.

 

TFA and NRA are spending tons of money to push the 'parking lot' bill, yet we can get any pressure to change this single word from defense to exception.

 

If that one word was changed then it would remove a lot of 'legal loopholes' that are used to disarm or otherwise harass law abiding citizens.

 

Dolomite;

   so you're saying that carrying a weapon is always a crime, but having an HCP is just an affirmative defense.  That's an interesting legal conundrum.  Do you by chance know what the relevant statutes are in this, I'd like to look more into it.

Thanks

Eric

 

[Jonnin]

I have a hard time finding "probable cause" when someone tells the LEO they have a legal weapon without being asked to do so.   At that point, the citizen has done nothing wrong and has gone above and beyond the law to work with the LEO.  

[JayC]

That is not exactly true...  Once the officer has a valid HCP in their hand, the assumption under the law is it's valid.  It's not reasonable to think that one permit isn't valid because some small number (fractions of 1%) of permit checks come back invalid. 

 

Just like if I see a man wearing a uniform and a badge that says he's a police officer, I'm legally obligated under the law to assume he is really a police officer, unless I have a reasonable suspension he's not.

 

I contend that any officer who automatically disarms every permit holder he comes into contact with for 'officer safety' is doing so unlawfully under current state law, because no reasonable person can believe every permit holder he comes in contact with is a threat to him or others.

 

Every one of us is breaking Tennessee law when we are carrying our firearms. Right or wrong it is the way the law is written. It is only after they have verified you have a HCP that the defense to breaking the law comes into play.

Dolomite

 

[Randall53]

Food for thought:

 A permit shows the citizen has proven proficiency, a clean record and mental stability. By the citizen announcing possession, the LEO instantly knows he's not dealing with a dangerous criminal on the loose and a threat is practically non-existent. If I were an LEO, and it's obvious that the person is not impaired in any way physically or mentally and the gun is in a safe location, holstered or in a secured location inside the vehicle, I would personally feel safer to leave it where it's at rather than to cause the gun to be handled  two separate times by two people in just a few minutes. A dropped gun could be more dangerous to all involved IMHO.

[JayC]

I agree, the negligent discharge rate among police officers is a lot higher per capita than the rate at which permit holders in this state are killing police officers.

 

For officer safety we shouldn't allow them to handle permit holders firearms unless they're placing the permit holder under arrest.

 

Food for thought:

 A permit shows the citizen has proven proficiency, a clean record and mental stability. By the citizen announcing possession, the LEO instantly knows he's not dealing with a dangerous criminal on the loose and a threat is practically non-existent. If I were an LEO, and it's obvious that the person is not impaired in any way physically or mentally and the gun is in a safe location, holstered or in a secured location inside the vehicle, I would personally feel safer to leave it where it's at rather than to cause the gun to be handled  two separate times by two people in just a few minutes. A dropped gun could be more dangerous to all involved IMHO.

[quietmike]

TCA 39-17-1308a :

 

 

It's illegal for you to have a firearm in your home under state law, and you only have a defense in court if the police arrest you and charges are filed.  HCP is also listed as one of the defenses.

No it's not, unless your home is open to the public.

 

Edited to add- The smilies aren't mine. They appeared from a copy/paste from Mitchie's.

 

39-17-1307.  Unlawful carrying or possession of a weapon.

  (a)  (1) A
person commits an offense who carries with the intent to go armed a
firearm, a knife with a blade length exceeding four inches (4''), or a
club.

   (2)  (A) The first
violation of subdivision (a)(1) is a Class C misdemeanor, and, in
addition to possible imprisonment as provided by law, may be punished by
a fine not to exceed five hundred dollars ($500).

      ( B) A second or subsequent violation of subdivision (a)(1) is a Class B misdemeanor.

      (C) A
violation of subdivision (a)(1) is a Class A misdemeanor if the
person's carrying of a handgun occurred at a place open to the public
where one (1) or more persons were present.

( B)  (1) A person commits an offense who unlawfully possesses a firearm, as defined in § 39-11-106, and:

      (A) Has been convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon; or

      ( B) Has been convicted of a felony drug offense.

   (2) An offense under subdivision ( B)(1)(A) is a Class C felony.

   (3) An offense under subdivision ( B)(1)( B) is a Class D felony.

(c)  (1) A person commits an offense who possesses a handgun and has been convicted of a felony.

   (2) An offense under subdivision (c)(1) is a Class E felony.

(d)  (1) A
person commits an offense who possesses a deadly weapon other than a
firearm with the intent to employ it during the commission of, attempt
to commit, or escape from a dangerous offense as defined in §
39-17-1324.

   (2) A person commits
an offense who possesses any deadly weapon with the intent to employ it
during the commission of, attempt to commit, or escape from any offense
not defined as a dangerous offense by § 39-17-1324.

   (3) A violation of this subsection (d) is a Class E felony.

(e)  (1) It
is an exception to the application of subsection (a) that a person
authorized to carry a handgun pursuant to § 39-17-1351 is transporting a
rifle or shotgun in or on a privately-owned motor vehicle and the rifle
or shotgun does not have ammunition in the chamber. However, the person
does not violate this section by inserting ammunition into the chamber
if the ammunition is inserted for purposes of justifiable self-defense
pursuant to § 39-11-611 or § 39-11-612.

   (2) It
is an exception to the application of subsection (a) that a person who
is not authorized to possess a handgun pursuant to § 39-17-1351 is
transporting a rifle or shotgun in or on a privately-owned motor vehicle
and the rifle or shotgun does not have ammunition in the chamber or
cylinder, and no clip or magazine containing ammunition is inserted in
the rifle or shotgun or is in close proximity to both the weapon and any
person.

(f)  (1) A person commits an offense who possesses a firearm, as defined in § 39-11-106(a), and:

      (A) Has
been convicted of a misdemeanor crime of domestic violence as defined
in 18 U.S.C. § 921, and is still subject to the disabilities of such a
conviction;

      ( B) Is, at the time of the possession, subject to an order of protection that fully complies with 18 U.S.C. § 922(g)(8); or

      (C) Is prohibited from possessing a firearm under any other provision of state or federal law.

   (2) If
the person is licensed as a federal firearms dealer or a responsible
party under a federal firearms license, the determination of whether
such an individual possesses firearms that constitute the business
inventory under the federal license shall be determined based upon the
applicable federal statutes or the rules, regulations and official
letters, rulings and publications of the bureau of alcohol, tobacco,
firearms and explosives.

   (3) For
purposes of this section, a person does not possess a firearm,
including, but not limited to, firearms registered under the National
Firearms Act, compiled in 26 U.S.C. § 5801 et seq., if the firearm is in
a safe or similar container that is securely locked and to which the
respondent does not have the combination, keys or other means of normal
access.

   (4) A violation of subdivision (f)(1) is a Class A misdemeanor and each violation constitutes a separate offense.

   (5) If
a violation of subdivision (f)(1) also constitutes a violation of §
36-3-625(h) or § 39-13-113(h), the respondent may be charged and
convicted under any or all such sections.

Edited February 11, 2013 by quietmike

[Dolomite_supafly]

That is not exactly true... Once the officer has a valid HCP in their hand, the assumption under the law is it's valid. It's not reasonable to think that one permit isn't valid because some small number (fractions of 1%) of permit checks come back invalid.

Just like if I see a man wearing a uniform and a badge that says he's a police officer, I'm legally obligated under the law to assume he is really a police officer, unless I have a reasonable suspension he's not.

I contend that any officer who automatically disarms every permit holder he comes into contact with for 'officer safety' is doing so unlawfully under current state law, because no reasonable person can believe every permit holder he comes in contact with is a threat to him or others.

Yes but prior to having a HCP in hand an officer can make a reasonable assumption that the person is breaking the law because the person is in fact breaking the law. Having a HCP doesn't mean you are not breaking the law, it just makes it so you cannot be prosecuted for breaking that law. You are still breaking the law when carrying.

Even police officers are breaking the law while carrying but the law makes an exception for them as well.

If an officer sees someone with a firearm he has probable cause to investigate the crime that has been committed. And prior to determining whether a person has a HCP the officer can secure the firearm for his safety if he chooses to do so.

When I get home I will quote the statute.

Dolomite

[Guest 6.8 AR]

Now, see? That's the kind of argument one gets into when laws become so vague and dangerous that the law itself becomes

a menace to society when the otherwise law abiding citizen wishes to make another a criminal. Laws are supposed to be clear,

concise and constitutional to keep it from becoming tyrannical and allow a higher authority use it to their advantage. Rights

come from God, or your own version of a higher entity. Laws come from man and his innate desire for power, instead of the

ones who wish to remain free and safe from tyranny. Man being the irresponsible government elected official who knows much

better than we how to live our lives.

 

It really is frustrating to see good people give up on something and argue for the wrong side, because they would rather argue

an existing fraud instead of making something right. Sad part is that none of these laws had to happen if we kept our eyes open

to emotionally driven arguments and stomped them out like the cockroaches they are.

[Guest 6.8 AR]

Yes but prior to having a HCP in hand an officer can make a reasonable assumption that the person is breaking the law because the person is in fact breaking the law. Having a HCP doesn't mean you are not breaking the law, it just makes it so you cannot be prosecuted for breaking that law. You are still breaking the law when carrying.

Even police officers are breaking the law while carrying but the law makes an exception for them as well.

If an officer sees someone with a firearm he has probable cause to investigate the crime that has been committed. And prior to determining whether a person has a HCP the officer can secure the firearm for his safety if he chooses to do so.

When I get home I will quote the statute.

Dolomite

That's the same attitude about someone saying "Because I can". I despise that statement. Officers make reasonable judgements on

activities. I hope they don't live their lives on assumptions. If that's all they do, they should seek other employment.

[Dolomite_supafly]

I will say that if a person notifies LE upon initial contact that they have a HCP then that removes the probable cause to investigate the crime of unlawful carrying or possession. But if the officer sees the firearm first then there is probable cause to investigate.

And as much as we hate how the law is written it is still the law.

Dolomite

[DaveTN]

By running your firearms serial number, make and model  there are creating a de facto computerized gun registry, when your pistol or rifle is ran, it ties that to your ID and a record is kept every time...  That information is not covered under current federal law...

How does a name get tied to a gun in the computer? If I’m running DL’s and then I run a gun serial number, how does the computer tie it to a person? Who maintains this mysterious “Database” and for how long do they maintain it?

[JAB]

I was recently a passenger in a car that was pulled over.  I was not the driver.  The reason the officer pulled us over was because the car's license plate had just expired.  Officer was courteous and friendly, simply made the driver aware and we all went on our way.

 

I was carrying my J-frame OWB under a cover garment.  As a passenger, I had no direct interaction with the LEO - he didn't even speak to me (no reason he should.)  He never saw my firearm and  I made the decision not to inform him - simply kept my hands in my lap and made no sudden moves.  Further, the driver (who also has an HCP) had her pistol in the glove compartment.  She didn't inform him, either (although she keeps her HCP behind her license and made no effort to conceal the HCP from him when she handed him her license.)

 

As I said, the officer checked her license and let her go after making her aware of the expired license plate.  To my knowledge, he never knew that there were two firearms in the vehicle - the subject never came up, the sky didn't fall and no one was shot or even yanked out of the car and put face down on the pavement.

 

Last April, I was involved in an accident that was not my fault.  The 'at fault' party ran a red light.  I was carrying but removed my firearm from my belt and left it in my vehicle (I never really left the vicinity of my vehicle.)  When the officer who wrote up the report came to take my statement, I never mentioned the firearm in my vehicle.  Again, I saw no reason to do so, the subject never came up and the interaction went without a hitch.

 

I used to think that I would inform no matter what but those, two interactions have made me reconsider that stance.  If I am driving and have the firearm on me then there is a good chance I would inform - but maybe not.  Of course, if for some reason I need to move around rather than sitting still with my hands in plain sight then I will inform because I wouldn't want any misunderstanding.  Otherwise, the way I see it, the cop doesn't give up his gun for my comfort so I see no reason to create a situation where he might take my gun for his comfort.  Honestly, I don't know him any more than he knows me and there are plenty of cops who commit crimes - simply having a badge doesn't make him 'above suspicion' in my eyes any more than having an HCP makes me 'above suspicion' in his.  Beyond that, a LEO is a civilian just like me and I feel no more a 'duty' to inform him that I have a gun than I feel to inform anyone else that I might speak to while carrying.  I truly think we need to stop this notion that LEO are some kind of 'special' class of citizen or that they should have rights or privileges which we wouldn't extend to any other civilian.

[quietmike]

Yes but prior to having a HCP in hand an officer can make a reasonable assumption that the person is breaking the law because the person is in fact breaking the law. Having a HCP doesn't mean you are not breaking the law, it just makes it so you cannot be prosecuted for breaking that law. You are still breaking the law when carrying.

Even police officers are breaking the law while carrying but the law makes an exception for them as well.

If an officer sees someone with a firearm he has probable cause to investigate the crime that has been committed. And prior to determining whether a person has a HCP the officer can secure the firearm for his safety if he chooses to do so.

When I get home I will quote the statute.

Dolomite

I'll save ya some time:

 

39-17-1351 subsection "t"

 

 Any law enforcement officer of this state or of any county or
municipality may, within the realm of the officer's lawful jurisdiction
and when the officer is acting in the lawful discharge of the officer's
official duties, disarm a permit holder at any time when the officer
reasonably believes it is necessary for the protection of the permit
holder, officer or other individual or individuals. The officer shall
return the handgun to the permit holder before discharging the permit
holder from the scene when the officer has determined that the permit
holder is not a threat to the officer, to the permit holder, or other
individual or individuals provided that the permit holder has not
violated any provision of this section and provided the permit holder
has not committed any other violation that results in the arrest of the
permit holder.

[Oh Shoot]

It's illegal for you to have a firearm in your home under state law, and you only have a defense in court if the police arrest you and charges are filed.

 

No it's not, unless your home is open to the public.

 

No, JayC is correct. TCA starts with premise that it is an offense to possess a loaded firearm anywhere in the state of TN, including your home, under 39-17-1307. A loaded firearm = going armed.

 

Having it in your home is simply another defense under 39-17-1308.

 

- OS

Edited February 11, 2013 by Oh Shoot

[quietmike]

No, JayC is correct. TCA starts with premise that it is an offense to possess a loaded firearm anywhere in the state of TN, including your home, under 39-17-1307

 

Having it in your home is simply another defense under 39-17-1308.

 

- OS

The charging statue is 1307, and there is no mechanism in it to charge someone for possession or carrying a weapon in their home, as it says it must be in a public place, so the defense in 1308 is moot.

 

Edited to add....Just reread it, you are correct. Apologies.

Edited February 11, 2013 by quietmike

[Oh Shoot]

The charging statue is 1307, and there is no mechanism in it to charge someone for possession or carrying a weapon in their home, as it says it must be in a public place, so the defense in 1308 is moot.

 

Edited to add....Just reread it, you are correct. Apologies.

 

Yep.

 

I suppose that on your own property, you technically don't qualify for 1307 until you grasp the loaded firearm or put it on your person. Then you are carrying it. :)

 

- OS

Edited February 11, 2013 by Oh Shoot

[Guest 6.8 AR]

And then, Castle Doctrine kicks in where? :D

[Oh Shoot]

And then, Castle Doctrine kicks in where? :D

 

Well, it even kicks in your car if you're carrying illegally. Of course, if you actually use your heater in justified self defense or defense of another, you're not charged with any of weapons violations in whole section.

 

So the legislature must be saying, if you carry unlawfully, find a bad guy and off him?

 

- OS

[Guest 6.8 AR]

:rofl: :rofl: :rofl: You knew what I was up to.

[Oh Shoot]

:rofl: :rofl: :rofl: You knew what I was up to.

 

I usually see ya coming, yeah. ;)

[JayC]

Re-read 39-17-1307a again....

 

It's a crime to carry a firearm with the intent to go armed, that would include in your own home...  And you have a defense against that crime via 39-17-1308a.

 

It just increases the criminal penalties if you're carrying a firearm in public, which for example if you're in your own business which is open the the public, again covered as a defense under 39-17-1308a.

 

Technically speaking all gun owners are committing a crime anytime they handle a loaded firearm in TN (except if they have a permit and are carrying a loaded (but not chambered) long gun in their vehicle), that is how badly written our laws are!  A simple change of 1 word in 39-17-1308a from defense to exception would remove this crazy logic.  

 

No it's not, unless your home is open to the public.

 

Edited to add- The smilies aren't mine. They appeared from a copy/paste from Mitchie's.

 

[JayC]

But, that isn't what we're talking about here...  in a traffic stop, a driver hands the officer his drivers license and valid HCP permit, then from a legal perspective the assumption is the permit is valid...  The officer receives no reasonable suspension of a threat because some astronomically small number of permit checks result in finding invalid permits - again some small fraction of 1%.

 

Now that doesn't preclude an officer from having some reasonable suspension that a specific permit maybe invalid, but that would require some other tangible reason other than some small minority of permits are found invalid during checks.

 

I agree if an officer finds a person carrying a firearm they may very well be in the right to disarm the person...  but lets be honest how many officers who find somebody carrying a firearm in a holster, their first question isn't "may I see your permit"...  and the instance the person produces a permit, then the disarm law kicks in, and the officer must have a reasonable belief that a threat exists.

 

I'll give you a further one to wrap your head around...  It doesn't appear officers can legally disarm permit holders who have loaded long guns in their vehicles...  since the carry of a long gun with a permit is an exception not a defense to state law, and the disarm law only provides that police officers may disarm handguns.

 

Yes but prior to having a HCP in hand an officer can make a reasonable assumption that the person is breaking the law because the person is in fact breaking the law. Having a HCP doesn't mean you are not breaking the law, it just makes it so you cannot be prosecuted for breaking that law. You are still breaking the law when carrying.

Even police officers are breaking the law while carrying but the law makes an exception for them as well.

If an officer sees someone with a firearm he has probable cause to investigate the crime that has been committed. And prior to determining whether a person has a HCP the officer can secure the firearm for his safety if he chooses to do so.

When I get home I will quote the statute.

Dolomite

 

[JayC]

I'm not saying anybody has constructed said database, only that the data exists in an easy (less than a days worth of programming) to build format.  Would it be 100% correct, no, but it can be used to tie possession of a specific firearm to a person or persons in short order.  Unlike HCP (and other firearm related) data, there is no state of federal law prohibiting the collection of this data or the linking of it to individuals.

 

How does a name get tied to a gun in the computer? If I’m running DL’s and then I run a gun serial number, how does the computer tie it to a person? Who maintains this mysterious “Database” and for how long do they maintain it?

 

[JayC]

Or if you store the firearm with the ammo, or have loaded mags that you have 'ready access to'. :)  TN firearm law is bad, very very bad.

 

Yep.

 

I suppose that on your own property, you technically don't qualify for 1307 until you grasp the loaded firearm or put it on your person. Then you are carrying it. :)

 

- OS

 

[Oh Shoot]

Or if you store the firearm with the ammo, or have loaded mags that you have 'ready access to'. :)  TN firearm law is bad, very very bad.

 

Even though the statute is titled "unlawful carrying or possession of a weapon", the "possession" part only applies to those unable to have a firearm at all.

 

Hence, only carrying the weapon needs a defense for those of us who can legally have a firearm, storage of loaded firearm at home doesn't fall under the first clause, picking it up does. :)

 

However, it's convoluted logic that even under the wording of 1307 that the state has decided that having a firearm in your car at all is "carrying" rather than merely "possessing" as it would be in your home.

 

- OS

 

edit: btw, LexisNexis at http://www.lexisnexis.com/hottopics/tncode/ has gone dead with FireFox, goes to login no matter what, still behaves okay on IE.

Edited February 11, 2013 by Oh Shoot