New Government in Tennessee

[midtennchip]

I agree, but the opinon really doesn't address "On duty" at all. Like I said the very fact that it says when the off duty officer "responds" he is in the discharge of his duties. I take that to mean responding to something is what constitutes "discharge of duties" and that would apply to On or Off duty. But..that is just my view I admit.

. . .

LOL...and to me it doesn't. Why can't things be more simple?

I think we agree on our personal opinions on this general topic, but regarding the AG Opinion, keep in mind that the Rule of Negative Implication (in Latin, expressio unius est exclusio alterius, meaning “The expression of one thing is the exclusion of another.") is a basic rule of statutory construction. To avoid it, you sometimes see a legislature include a specific provision in a law saying the rule does not apply (for example, the Uniform Commercial Code has one).

The AG could have said "officer" rather than "off duty officer," so by implication, the "off duty" reference is intended to distinquish between "off duty" and "on duty." I certainly agree the AG could (and should) have been more clear, but I suspect the vagueness was VERY intentional.

Paul Summers was the AG at the time this opinion was released, but there's another AG Opinion that uses the same language that was released under AG Robert Cooper:

http://state.tn.us/attorneygeneral/op/2008/OP/OP17.pdf

Again, this is a very academic discussion. The issue regarding LEOs is NOT the same as an HCP holder.

BTW, the lobbyist in our firm released a "legislative update" yesterday in which he said he expects this issue to be brought up early in the next legislative session. Whether the bill ever gets through committee is anyone's guess since these things take on a life of their own once they get introduced. (My small attempt to get back on the original topic; sorry for the thread drift!)

Edited December 20, 2008 by midtennchip

[Fallguy]

Between both AG opinions I can see your way of thinking. The both say that "off-duty" is not in the actual discharge of duties, thus implying "on duty" is in the actual discharge of duties.

I can't say I have completely changed my mind, but I definitely can't say your position is wrong either.

Maybe with a little luck the law will be changed for both LEOs and HCP holders though and this will all become moot.

[Guest db99wj]

Between both AG opinions I can see your way of thinking. The both say that "off-duty" is not in the actual discharge of duties, thus implying "on duty" is in the actual discharge of duties.

I can't say I have completely changed my mind, but I definitely can't say your position is wrong either.

Maybe with a little luck the law will be changed for both LEOs and HCP holders though and this will all become moot.

Anyway, yes, hopefully the next session will bring change. I guess it will take a determination or a distinction between a bar/club and a resturant that serves...well we can only hope.

[Guest HexHead]

A leo, if called, responds, immediately. If not, someone gets hurt, gets robbed, or worse, gets killed. They drop what they are doing or eating, and go. That is what they do, they know that it is a possiblity that they might not to get that 15 minutes, 30 minutes for lunch if it is busy. If me or my family needs a LEO, I sure as hell want them to stop and come help me, with all their tools.

Unless he's walking a beat, when that call comes during meal time, he's headed to his car to answer the call. No reason his gun shouldn't be waiting there for him too. They need to obey the laws just like we do.

[GLOCKMEISTER]

First, eating lunch is conducting "personal business"--not official business, regardless of who you work for--official business means actually discharging your duties--eating lunch would not fall under that category.

Second, they are citizens--just like everyone else--they are subject to the laws as everyone else. If they would arrest you for the offense of possession of a gun while eating in such an establishment--then they should suffer the same consequences. The laws are not different for them than for us, although ofttimes we make a distinction that should have never been made to begin with.

Third, there are "special groups" because they are told they are special. I'm not special because I have a permit. I'm just an average citizen now bound by stricter laws than I was before--because before I did not have to worry about knowing where a gun is and is not permitted--now I am. Now I am responsible for knowing that I can't take a gun into a city, county or state owned park, or into a court house, or into a place that sells beer like a pizza hut, or any place clearly designated as a "no firearms" zone, among others...That is the difference between those who do have and those who do not have permits...The laws are stricter on those who carry--because those who don't--they don't have to worry about it one way or another.

Finally, again--just expressing my opinion on 39-17-1305--but it would be nice to see an AG opinion forthcoming on this issue for complete clarification.

You Really think police shouldnt be able to carry at lunch????

You realize most police officers dont get to finish lunch while working. I remember only getting to completely an average of 1 lunch period a week without getting interrupted by some kind of call. So what you saying is... "they are off the clock" in your meaning of conducting "personal business" , right... so I guess you would have them ignore the call... let whatever happens while they finish their lunch, since they are officially "off the clock"... maybe wait the whole hour until time for them to be back on the clock or "official business time"....

Since were thinking about it... I say all public safety services should be relieved of "official business time" at least 2 hours a day... you know, 1 hour for lunch, and at least a 10 minute break every hour... and 15 for you know the ol #2.... thats right all of them... fire, police, emt's and even the dispatchers.

So the next time you call 911, wonder if the person you are depending your life on isnt taking their time "conducting personal business"...

[GLOCKMEISTER]

btw....

Most small Police Dept's have their officers on "call"... 24/7... and in their General Orders they are allowed to carry while on call unless they are under the influence of alcohol. Its up at the discretion of he police chief of that particular Police dept or the chief law enforcment officer of that particular county to determine what is considered ..."on call"... or official dutys of that said officer.

Just an FYI....

Edited December 20, 2008 by GLOCKMEISTER

[midtennchip]

btw....

Most small Police Dept's have their officers on "call"... 24/7... and in their General Orders they are allowed to carry while on call unless they are under the influence of alcohol.

Just an FYI....

I haven't mentioned it, but you bring up a good point. I do think this issue is often addressed in department policy. That is, the department's policies go a long way in any determination (legal or otherwise) of what "discharging duties" means.

[GLOCKMEISTER]

Unless he's walking a beat, when that call comes during meal time, he's headed to his car to answer the call. No reason his gun shouldn't be waiting there for him too. They need to obey the laws just like we do.

Please see the last several above post...

And for those whome think police officers should disarm themselves to be able to eat lunch think about this. They cant be in uniform without their firearm, and they cant be operating their police cruiser unarmed. So you guys realize it sounds like you want them to strip down whenever they go eat lunch!

[Guest db99wj]

Unless he's walking a beat, when that call comes during meal time, he's headed to his car to answer the call. No reason his gun shouldn't be waiting there for him too. They need to obey the laws just like we do.

Like I have said, I will respectfully disagree with the assesement that the LEO on shift is "off duty" while at lunch.

As this thread goes on and I read the info above Fallguy, Midtennchip, justme, Dave and Glock, I am even more convinced that is ok for a LEO who is on duty, at lunch, to eat at a resturant that serves. So my opinion is even stronger than before.

[Fallguy]

I think a lot of the problem is, the law itself.

For the sake of argument I will say that "On Duty" and eating lunch is in actual discharge of duties.... If the legislature trust a LEO to be armed and in a place that serves alcohol while he is working, then why not when he is not on duty? Why did they feel the need to make a distinction?

Again...I hope all of this academic in a few months.

[midtennchip]

If the legislature trust a LEO to be armed and in a place that serves alcohol while he is working, then why not when he is not on duty? Why did they feel the need to make a distinction?

I think that distinction goes to the "discharging duties" analysis. But, why the legislature did it this way, who knows??????

[Guest db99wj]

I think that distinction goes to the "discharging duties" analysis. But, why the legislature did it this way, who knows??????

Many of them are idiots and things sound good, but they won't research the side effects of their actions, and they are trying to make too many of their constituents happy so that they can get reelected.

And fallguy, stop making good points!

[Fallguy]

I think that distinction goes to the "discharging duties" analysis. But, why the legislature did it this way, who knows??????

Oh yes, that is the distinction, but my question is why did they do it? Why not just a LEO carry 24/7 period (other than when intoxicated)? It seems the state is so afraid of people carrying handguns, that they felt the need to even limit LEOs in certain situations.

Many of them are idiots and things sound good, but they won't research the side effects of their actions, and they are trying to make too many of their constituents happy so that they can get reelected.

Totally agree.... That is why in the coming months when new bills are introduced we need to call our legislators and tell them how we feel and point out any possible unintended consequences of a bill.

And fallguy, stop making good points!

I so need to get a life.....lol

[DaveTN]

I haven't mentioned it, but you bring up a good point. I do think this issue is often addressed in department policy. That is, the department's policies go a long way in any determination (legal or otherwise) of what "discharging duties" means.

I didn’t bring up department policy because just as you pointed out about an AG opinion; they are not law. (Warning shots come to mind. Most departments have a policy on them one way or the other, but our state law did not address them)

I personally would not eat in a restaurant that served alcohol when I was in uniform; (its just bad PR) but I guess there may be times and places where it is convenient for some Officers to do so.

I always paid for my meal when I ordered. Usually the dispatchers would let us eat, but if something serious goes down and you are close…. You go. So the idea that they are off duty just doesn’t hold water. But then… we didn’t have on or off duty status; so it didn’t matter.

But lets face it, this discussion isn’t about whether or not a cop is on-duty when he’s eating; it’s about some folks thinking that using that as an argument for them to carry will somehow be helpful. It won’t be; its apples and oranges.

[Fadex]

If it weren't for one experience I would be in complete agreement with the opinion that LEO's should be able to carry 24/7.

I know this is an isolated incident, but it still sticks in my mind.

Several years ago (college days..ahhh) I was in a bar with some friends. We noticed that the guy standing beside me was having some difficulty. Slurred speech, swaying, agitated at the bartender because he had been cut off. No rare occurrence at a bar. Well this guy must have been trashed. He passed out standing up, hit his head on the bar top on the way down. During this his MPD badge landed on the floor and flipped open...yeah...nice PR. He came to and we tried to help him back up, he started swinging at everything that moved and started grabbing at his right hip llike you would to draw your weapon. Fortunately nothing was there. The bouncers excorted him out while the PD was called. I have always wondered what would have happened IF he had been armed.

I sincerely hope that his fellow officers had a frank discussion with him the next day.

I will say that this officer was very young and I know, and I hope others do too, that his actions are not representative of most. But it only takes one incident to ruin it for everyone.

[midtennchip]

But lets face it, this discussion isn’t about whether or not a cop is on-duty when he’s eating; it’s about some folks thinking that using that as an argument for them to carry will somehow be helpful. It won’t be; its apples and oranges.

I agree totally. Personally, if I can't carry in a particular restaurant, I am glad to see them when uniformed LEOs (carrying their weapons) come in. At least someone (other than a BG) is armed in the place. I'd rather have them armed than nobody armed.

[DaveTN]

If it weren't for one experience I would be in complete agreement with the opinion that LEO's should be able to carry 24/7.

I know this is an isolated incident, but it still sticks in my mind.

Several years ago (college days..ahhh) I was in a bar with some friends. We noticed that the guy standing beside me was having some difficulty. Slurred speech, swaying, agitated at the bartender because he had been cut off. No rare occurrence at a bar. Well this guy must have been trashed. He passed out standing up, hit his head on the bar top on the way down. During this his MPD badge landed on the floor and flipped open...yeah...nice PR. He came to and we tried to help him back up, he started swinging at everything that moved and started grabbing at his right hip llike you would to draw your weapon. Fortunately nothing was there. The bouncers excorted him out while the PD was called. I have always wondered what would have happened IF he had been armed.

I sincerely hope that his fellow officers had a frank discussion with him the next day.

I will say that this officer was very young and I know, and I hope others do too, that his actions are not representative of most. But it only takes one incident to ruin it for everyone.

When I go out to drink I sometimes get drunk. That is why I don’t carry and I don’t drive even after one beer. What if I was trashed and someone said “That guy has an HCP, what if he had been armed?”

A permit holder just shot a cop to death on a traffic stop; what do we want to do with little tid bit of information? We can play “what if” all day long.

According to you the Officer was not armed. That means he disarmed himself prior to going to the bar.

I agree that it is not good PR and probably violates his department policy. Cops are people; they make mistakes. In my department if a cop was involved in something like that a Command Officer would have been sent to the scene and the Officer would be held responsible for his actions.

BTW…. Nothing in my responses on this subject is meant to infer that a cop should be allowed to carry while he is drinking. He shouldn’t be, and if we get legislation that allows an HCP holder to go into a restaurant that serves alcohol, he shouldn’t be either.

Edited December 20, 2008 by DaveTN

[Guest db99wj]

I didn’t bring up department policy because just as you pointed out about an AG opinion; they are not law. (Warning shots come to mind. Most departments have a policy on them one way or the other, but our state law did not address them)

I personally would not eat in a restaurant that served alcohol when I was in uniform; (its just bad PR) but I guess there may be times and places where it is convenient for some Officers to do so.

I always paid for my meal when I ordered. Usually the dispatchers would let us eat, but if something serious goes down and you are close…. You go. So the idea that they are off duty just doesn’t hold water. But then… we didn’t have on or off duty status; so it didn’t matter.

But lets face it, this discussion isn’t about whether or not a cop is on-duty when he’s eating; it’s about some folks thinking that using that as an argument for them to carry will somehow be helpful. It won’t be; its apples and oranges.

One issue here in Memphis, and I will assume Nashville, Chatt., Knoxville, in other words larger cities, if you look around, it is hard to get a decent meal, out, that doesn't serve alcohol. That's why this law sucks so much for all of us. For example, here in Memphis, there is an italian restaurant that is set up mostly for take out, pizzas, lasagna, ravioli, sandwich's, and other pasta's, it also has a "market' area that you can buy dry pasta's, sauces etc. However, it has an area with about 9-12 tables that at lunch, maybe dinner, you can sit down, pick one of the pasta's are pizza's and eat there. You will spend about $8 for lunch. They serve some Italian beer's there that you can have. That's one example, here is some more. Moe's, no bar, but serves some beers, Pei Wei, no bar, but serves some wines, Bogie's Deli, serves some beers, again no bar. Every restaurant, with the exception of fast food(taco bell, McDonald's, Wendy's) and some deli chains, like Quizno's, McAlister's, serve alcohol. My point is that there are many places like this that are not bars, they don't even have a "bar" but serve in these cities, that by law are off limits, and I don't believe, my opinion only, this should restrict the LEO from eating there. McDonald's every day will kill you. And yes, we all should be able to carry to these places.

[Fadex]

When I go out to drink I sometimes get drunk. That is why I don’t carry and I don’t drive even after one beer. What if I was trashed and someone said “That guy has an HCP, what if he had been armed?â€

A permit holder just shot a cop to death on a traffic stop; what do we want to do with little tid bit of information? We can play “what if†all day long.

According to you the Officer was not armed. That means he disarmed himself prior to going to the bar.

I agree that it is not good PR and probably violates his department policy. Cops are people; they make mistakes. In my department if a cop was involved in something like that a Command Officer would have been sent to the scene and the Officer would be held responsible for his actions.

BTW…. Nothing in my responses on this subject is meant to infer that a cop should be allowed to carry while he is drinking. He shouldn’t be, and if we get legislation that allows an HCP holder to go into a restaurant that serves alcohol, he shouldn’t be either.

I understand that cops are people too and also make mistakes. That's the only reason I handed his badge to the officers that showed up instead of handing it to the Chief the next day with a copy of the security tape.

I do think that everyone, HCP holder and LEO alike, should be able to carry legally in a place that serves or sells alcohol. I'm not a huge fan of fast food and I think grocery store parking lots can be one of the more dangerous places. But I think carrying while consuming alcohol is a bad idea anytime.

[Guest 270win]

After paying fees, background check, fingerprinting, and classes, it is kind of silly that one has to leave a handgun his car to be stolen when going out on a dinner and a movie in order to follow the law. I really hope there is a clean bill brought up that allows people with carry permits to have a handgun anywhere alcohol is served..whether it be a restaurant, bowling alley, or professional baseball park. I find it funny that people in 'liberal' Massachusetts can carry virtually anywhere with a license (yes you can get a non resident MA license too), but not anywhere in 'conservative' TN. A lot of states like NY and MA highly encourage people to always keep guns on their person to prevent theft.

[midtennchip]

After paying fees, background check, fingerprinting, and classes, it is kind of silly that one has to leave a handgun his car to be stolen when going out on a dinner and a movie in order to follow the law. I really hope there is a clean bill brought up that allows people with carry permits to have a handgun anywhere alcohol is served..whether it be a restaurant, bowling alley, or professional baseball park. I find it funny that people in 'liberal' Massachusetts can carry virtually anywhere with a license (yes you can get a non resident MA license too), but not anywhere in 'conservative' TN. A lot of states like NY and MA highly encourage people to always keep guns on their person to prevent theft.

Maybe this has been discussed previously, but keep in mind that the Tennessee Restaurant Association is against any bill that would allow HCP holders to carry where alcohol is served.

http://www.thetra.com/associations/4860/files/legislativereport.pdf

http://www.coltcco.com/?p=194

From what I hear from some lobbyists I know, there is a general liability insurance issue behind SOME of this stance. Right now, the alcohol serving restaurants do not have to worry about liability for gun-related incidents since it is illegal to have one in such restaurants. Although a restaurant could post the "no guns" notice on the door, they would still lose some liability protection if the law is changed.

In addition, they may have a new liability issue (which has, to my knowledge, never been argued, but it IS coming) of being sued for the "no guns" policy when an HCP holder is injured or killed in their parking lot. Some of the new studies are saying that "no gun" zones actually increase the likelihood of criminal violence, so someone is going to argue that one day. However, if it is illegal to carry in a particular restaurant, that restaurant is immune to such a suit. Hence, among other reasons, they are fighting any law that would make it legal.

[cadillacdude1975]

i beat this very subject to death in my local forums here in chattanooga. it pissed off several people including police officers.

the problem is with the law. that much is very correct. i can say that if a police officer is sitting down eating, the radio is always on. so if there was a huge explosion or shooting somewhere, chances are that police officer is going to drop his utensils and run for the car. i have seen this happen before.

the carry laws in Tennessee need serious rewrites, but that is going to take time to do it correctly without screwing them up more than they already are.

i work with a police officer and he sees both sides of this arguement, and his exact question to me was can you define on or off duty? being a visual deterrent against illegal activity is an official part of the job, so while he/she is sitting there eating, you can bet no one is gonna f-up while the LEO is present.

like i said before, i would be willing to bet that 50% of the police officers out there do not know the carry laws as well as they should. that should be a yearly program taught at one of the many in service shooting days they take to do shooting/tactical practice.

my 2 cents.

[Fallguy]

I have always heard the TRA was opposed to carry in restaurants, for other reasons, but according to the report you posted their possition was Neutral.

Also not sure why they would have any more or less liabitly than anyone else that posted their property against carry.

[Glock30Owner]

Maybe this has been discussed previously, but keep in mind that the Tennessee Restaurant Association is against any bill that would allow HCP holders to carry where alcohol is served.

http://www.thetra.com/associations/4860/files/legislativereport.pdf

http://www.coltcco.com/?p=194

From what I hear from some lobbyists I know, there is a general liability insurance issue behind SOME of this stance. Right now, the alcohol serving restaurants do not have to worry about liability for gun-related incidents since it is illegal to have one in such restaurants. Although a restaurant could post the "no guns" notice on the door, they would still lose some liability protection if the law is changed.

In addition, they may have a new liability issue (which has, to my knowledge, never been argued, but it IS coming) of being sued for the "no guns" policy when an HCP holder is injured or killed in their parking lot. Some of the new studies are saying that "no gun" zones actually increase the likelihood of criminal violence, so someone is going to argue that one day. However, if it is illegal to carry in a particular restaurant, that restaurant is immune to such a suit. Hence, among other reasons, they are fighting any law that would make it legal.

I would wonder if they would be opposed to a change in wording like this:

39-17-1305. Possession of firearm where alcoholic beverages are served. —

(a)  It is an offense for a person to possess a CONCEALED firearm within the confines
of a building open to the public where liquor, wine or other alcoholic beverages, as
defined in § [URL="http://www.michie.com/tennessee/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=tncode&d=57-3-101&sid=23c30640.1f31d1c5.0.0#JD_57-3-101"]57-3-101[/URL](a)(1)(A), or beer, as defined in § [URL="http://www.michie.com/tennessee/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=tncode&d=57-6-102&sid=23c30640.1f31d1c5.0.0#JD_57-6-102"]57-6-102[/URL](1), are served for on premises consumption.

(  A violation of this section is a Class A misdemeanor.
(c)  The provisions of subsection (a) shall not apply to a person who is:

(1)  In the actual discharge of official duties as a law enforcement officer,
or is employed in the army, air force, navy, coast guard or marine service
of the United States or any member of the Tennessee ational guard in the
line of duty and pursuant to military regulations, or is in the actual discharge
of duties as a correctional officer employed by a penal institution; or

(2)  On the person's own premises or premises under the person's control or
who is the employee or agent of the owner of the premises with responsibility
for protecting persons or property.

Where I work, I get the exemption in (2).

Edited December 23, 2008 by Glock30Owner
formatting

[Fallguy]

I don't think open or concealed is the problem they have (if any), it's just carry period.

But the AG has already said a property owner can regulate the manner of carry on their property. So even if the law changed to allow carry, the restaurant owner could restrict it to concealed only if they wanted to.