Interesting TN Appellate Ruling

[JayC]

I'm not sure how I missed this one, but it seems last year one of the TN Appeals courts ruled that carrying a gun isn't illegal per say, and the fact that s a person is an armed party in and of itself is not RAS for a Terry Stop.

 

I know there have been lots of arguments back and forth amongst members about Terry Stops and HCP holders, but this ruling seems to prevent terry stops based solely on the fact a person is carrying a firearm.

 

The case is TN vs WILLIAMSON from last year - here is the document number for the ruling: No. W2011-00049-SC-R11-CD - Filed May 31, 2012

 

I don't see where this was overturned by the state supreme court, so it would seem this ruling is valid.  Some interesting quotes:

 

In addition, one’s status as an “armed party” is not per se illegal. See generally Tenn. Code Ann. § 39-17-1351( B) (2006) (providing that “any resident of Tennessee who is a United States citizen or permanent lawful resident . . . who has reached twenty-one (21) years of age, may apply to the department of safety for a handgun carry permit,” and that “[i]f the applicant is not prohibited from purchasing or possessing a firearm in this state pursuant to” a provision of state or federal law and “otherwise meets all of the requirements of this section, the department shall issue a permit to the applicant”). While the carrying of a firearm under certain circumstances may constitute a crime, the caller did not offer any 10 articulable facts indicating that the Defendant unlawfully possessed a gun, and the information at the scene did not demonstrate the unlawfulness of its possession until after the frisk.

 

Because there was no “assertion of illegality” in the tip, the officers lacked the requisite level of suspicion to first detain and then frisk the Defendant for weapons. 

 

the court held that while there were ways in which possession of a gun would be a crime, such as possessing a gun with an altered serial number or a gun that was unlicensed, no evidence had been presented during the suppression hearing “suggesting that [the officers] w[ere] aware of any articulable facts” indicative of any illegality.

 

If I'm reading this ruling correctly, then the arguments that officers have RAS to detain anybody carrying a gun, are no longer lawful per this case law?  Very interesting read.

Edited November 19, 2013 by JayC

[Q-tip]

It has long been popular opinion in TN that carrying a gun is illegal always and therefore is RAS for a stop. This is the first court case I've heard of on the matter, and I believe they ruled correctly. I'm still optimistic that if this case or one similar made it to the TNSC the ruling would be the same, and binding to the entire state. 

[Dane]

But it is still in the law that an HCP holder must present their permit upon request. So how does this affect that?


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[wjh2657]

It will be interesting to see how this plays out against the "Intent to go armed" provision of the law. If the weapon is concealed , there is no justification in itself to search. However, if the weapon is carried openly the "Intent to go armed" still allows the LEO to ask for a permit to ensure that the weapon is being carried legally. It is still against the law to carry a loaded handgun in Tennessee, the permit is a "defense" against prosecution or arrest. The Handgun Permit laws did not give everybody the right to "pack iron" as it only gave permit holders that right. An openly carried weapon could still prompt a stop and search to ensure that the law is being observed. More to this decision than even the court considered.

Edited November 19, 2013 by wjh2657

[JayC]

I'm not sure that is the case, the fact the officers know you're carrying a firearm in and of itself isn't RAS to detain you.  The must have some articulable fact of illegality to stop and detain you.

 

This ruling also means that running guns serial numbers as SOP is probably an illegal search, since that is detaining your firearm without RAS that is likely stolen.

 

Officer can still come up and ask to see your HCP, or have a non-detaining conversation with you, but this ruling seems to indicate they can't detain you, or perform a terry stop based solely on the fact they know you're carrying a firearm. 

 

It will be interesting to see how this plays out against the "Intent to go armed" provision of the law. If the weapon is concealed , there is no justification in itself to search. However, if the weapon is carried openly the "Intent to go armed" still allows the LEO to ask for a permit to ensure that the weapon is being carried legally. It is still against the law to carry a loaded handgun in Tennessee, the permit is a "defense" against prosecution or arrest. The Handgun Permit laws did not give everybody the right to "pack iron" as it only gave permit holders that right. An openly carried weapon could still prompt a stop and search to ensure that the law is being observed. More to this decision than even the court considered.

[Fallguy]

Here are some links to the ruling.  This was a State Supreme Court Ruling, so it would have to appealed by the state in Federal system to overturn it.

 

http://tncourts.gov/sites/default/files/williamsonguyopn_0.pdf

 

http://caselaw.findlaw.com/tn-supreme-court/1602261.html

 

 

From the ruling...

 

Conclusion

 

Because the anonymous report of an armed party, absent corroboration and other

indicia of reliability as to criminal activity, did not establish reasonable suspicion based upon

specific, articuable facts, there was an insufficient basis for the investigatory stop and frisk

of the Defendant. The evidence seized, therefore, should be suppressed. The convictions

are reversed and the cause dismissed. Costs are adjudged against the State.

 

Edited November 19, 2013 by Fallguy

[Guest PapaB]

What's with this statement?

or a gun that was unlicensed,

What, in TN, is an unlicensed gun?

 

I'd love to hear an opinion on this ruling from our lawyers. Will this (or should this) ruling affect more than just stops involving anonymous tips? Is this statement "In addition, one’s status as an “armed party” is not per se illegal." referencing 39-17-1351 be consistant with prior rulings (or AG opinions).

[Oh Shoot]

What's with this statement?

What, in TN, is an unlicensed gun?

 

Caught my eye too.That seems a particularly stupid remark by a an august higher court in this state.

 

- OS

[Guest Bonedaddy]

Tipton county is not known for exceptional thinkin' powers, Mac.

[JayC]

The last statement is from a non-TN court that is being quoted in the opinion of our appellate court.  I *think* they're referencing a MA state case, but I'd have to go back and re-read the footnotes to be sure.

 

From my reading of the entire opinion, it does indeed impact more than anonymous tips...  The court basically says that tip even if valid does not provide RAS for a terry stop and the 'officer safety' search that comes with it.  As I read the entire opinion basically having a gun does not give officers RAS (let alone PC) to perform a terry stop unless they have some other information available to them that indicates this individual is committing a criminal act.

 

Almost assuredly it prohibits the running of serial numbers on firearms as a routine procedure in some police departments.

 

What's with this statement?

What, in TN, is an unlicensed gun?

 

I'd love to hear an opinion on this ruling from our lawyers. Will this (or should this) ruling affect more than just stops involving anonymous tips? Is this statement "In addition, one’s status as an “armed party” is not per se illegal." referencing 39-17-1351 be consistant with prior rulings (or AG opinions).

[RichardR]

Shame that it will probably be ignored, purposely misinterpreted &/or eventually re-legislated/re-adjudicated, I have zero faith in it being upheld or reaffirmed.

[Q-tip]

 

Here are some links to the ruling.  This was a State Supreme Court Ruling, so it would have to appealed by the state in Federal system to overturn it.

 

http://tncourts.gov/sites/default/files/williamsonguyopn_0.pdf

 

http://caselaw.findlaw.com/tn-supreme-court/1602261.html

 

 

From the ruling...

 

Conclusion

 

Because the anonymous report of an armed party, absent corroboration and other

indicia of reliability as to criminal activity, did not establish reasonable suspicion based upon

specific, articuable facts, there was an insufficient basis for the investigatory stop and frisk

of the Defendant. The evidence seized, therefore, should be suppressed. The convictions

are reversed and the cause dismissed. Costs are adjudged against the State.

 

 

This is great news. TN has finally caught up to other states like GA and IN in this regard, and has also fallen closer in line with many federal court rulings on the issue. 

 

Now the only thing is to make sure LEAs across the state know about the ruling and how it affects what they can and cannot to to people carrying firearms. 

Edited November 23, 2013 by Q-tip