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Thread: TN- Have to show CCW permit when OC to cops, but do they have right to run your name?

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    TN- Have to show CCW permit when OC to cops, but do they have right to run your name?

    I know in Ga and TN you can carry open with a CCW permit and the cops have the right to see your license...but do they also have to right to keep you further for them to run a check on your name also if you are only OC ing legally?

    Just curious...

    David

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    Quote Originally Posted by Bandityo View Post
    I know in Ga and TN you can carry open with a CCW permit and the cops have the right to see your license...but do they also have to right to keep you further for them to run a check on your name also if you are only OC ing legally?

    Just curious...

    David
    I think the proper way to frame the question is to outline the extent of the police power to seize an open carrrier in the first place. While many state stautes appear to hold that police may demand permits to carry guns on demand, the Supreme Court has held the opposite re driver's licenses (DLs). See Delaware v. Prouse, 440 U.S. 648, 663 (1979) ("except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.").

    So I believe that any police demand for a gun carry permit creates no lawful duty on the part of the citizen unless the individual is first properly seized by the police pusuant to at least reasonable articulable suspicion of some crime, e.g., jaywalking, carrying a firearm without a license, carrying a firearm while prohibited from doing so, etc.

    What needs to happen is for for open carriers to sue the police for damages and injunctive reliefe if they are seized non-consensually mderely to see a license. Only thru litigation can we build a body of case law removing the "qualified immunity" of the police to violate our rights when the right is not yet "clearly established."

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    Regular Member Fallguy's Avatar
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    In TN it is illegal to carry a handgun. Having a carry permit is a defense against that law.

    So if a LEO sees your handgun, he has every reason to think you are breaking the law until he sees your permit. After you give him your permit, to me it is not unreasonable for him to request a computer check to make sure the permit is valid.

    Now in states where OC is legal wihtout a permit, many court cases have ruled that just OCing itself is not enough cause for a LEO to detain the person.

    One way a carry permit and DL are different (at least in TN) is that although you are supposed to have a DL to drive...the act of driving itself is not illegal. So if a LEO sees you driving he has no cause to think you are doing something illegal and therefore no reason to detain you. But as I said above, in TN it illegal to carry a firearm...so basically you are breaking the law until you can prove otherwise.

    Now do I agree with the law, NO...I personally believe that the way TN law is written it violates both the US and TN consitutions...but for now...it is the law.
    Last edited by Fallguy; 02-25-2012 at 09:34 AM.
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    Quote Originally Posted by Fallguy View Post
    In TN it is illegal to carry a handgun. Having a carry permit is a defense against that law.

    So if a LEO sees your handgun, he has every reason to think you are breaking the law until he sees your permit.
    That's basically the way all laws are written, including driver licensing laws. Nonetheless, the police cannot stop motorists to check for DLs absnet reasonable suspicion for the stop in the first place.

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    Quote Originally Posted by Mike View Post
    I think the proper way to frame the question is to outline the extent of the police power to seize an open carrrier in the first place. While many state stautes appear to hold that police may demand permits to carry guns on demand, the Supreme Court has held the opposite re driver's licenses (DLs). See Delaware v. Prouse, 440 U.S. 648, 663 (1979) ("except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment."). [ ... ] [my emphasis]
    Thank you very very much for the citation.

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    Quote Originally Posted by Mike View Post
    That's basically the way all laws are written, including driver licensing laws. Nonetheless, the police cannot stop motorists to check for DLs absnet reasonable suspicion for the stop in the first place.
    Not really...

    39-17-1307 says it is illegal to posses a firearm.

    You can not find a law that says it is illegal to drive.

    Yes the effect is the same, you have to have permission from the gov to do them. But one is illegal (carry) on it's face, the other (driving) is not.
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    Quote Originally Posted by Fallguy View Post
    Not really...

    39-17-1307 says it is illegal to posses a firearm.

    You can not find a law that says it is illegal to drive.

    Yes the effect is the same, you have to have permission from the gov to do them. But one is illegal (carry) on it's face, the other (driving) is not.
    All criminal statutes start by making somthing unlawful, and then enumerate exceptions to the prohibition. Below is the Virginia driving statute making it "illegal to drive," then explaining when the general provision does not apply.
    --
    § 46.2-300. Driving without license prohibited; penalties.

    No person, except those expressly exempted in §§ 46.2-303 through 46.2-308, shall drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver's license, as provided in this article, satisfactorily passed the examination required by § 46.2-325, and obtained a driver's license, nor unless the license is valid.

    A violation of this section is a Class 2 misdemeanor. A second or subsequent violation of this section is a Class 1 misdemeanor.

    Upon conviction under this section, the court may suspend the person's privilege to drive for a period not to exceed 90 days.

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    Regular Member Fallguy's Avatar
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    Quote Originally Posted by Mike View Post
    All criminal statutes start by making somthing unlawful, and then enumerate exceptions to the prohibition. Below is the Virginia driving statute making it "illegal to drive," then explaining when the general provision does not apply.
    But that is not what the below statute does. It does not say it is illegal to drive period and having a license is a defense to unlawful driving. It makes an exception if you have a license. There is a difference between an exception and a defense.
    Quote Originally Posted by Mike View Post
    --
    § 46.2-300. Driving without license prohibited; penalties.

    No person, except those expressly exempted in §§ 46.2-303 through 46.2-308, shall drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver's license, as provided in this article, satisfactorily passed the examination required by § 46.2-325, and obtained a driver's license, nor unless the license is valid.

    A violation of this section is a Class 2 misdemeanor. A second or subsequent violation of this section is a Class 1 misdemeanor.

    Upon conviction under this section, the court may suspend the person's privilege to drive for a period not to exceed 90 days.
    I'm not where I can cite them at the moment, but I am aware of court casses that have sided with OCers when LEOs have detained them without cause in state where OC without a permit is legal without a permit. But in TN that is not the case.

    You just can't compare having to have a DL to drive with having to have a permit to carry in states where carry is illegal.

    But I believe we may just have to agree to disagree...

    My personal opinon every state should be like Vemont, allow OC and CC without any permit and since all states would be like that there would not be the need for permits/licenses period. Unfortunatley that is not the case.
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    All a constitutionally interesting argument, but rather moot here, since TN statute specifically mentions that a LEO may ask to see your handgun permit at any time, and you must comply. There's no Terry or probable cause of any type necessary; although logically, if the LEO doesn't see a gun or a bulge that might be one, probably no reason he'd think to ask.

    There isn't anything in the statutes that prevents a LEO from further checking the validity of the HCP either. Just a note, running your driver's license for a traffic stop reveals that information too. Your HCP and DL number are the same.

    - OS
    Last edited by Oh Shoot; 02-25-2012 at 10:11 PM.

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    Quote Originally Posted by Fallguy View Post
    SNIP So if a LEO sees your handgun, he has every reason to think you are breaking the law until he sees your permit. After you give him your permit, to me it is not unreasonable for him to request a computer check to make sure the permit is valid.
    Just a little side-note.

    When we decide it is reasonable for the cop to request a computer check for validity, we inadvertently agree to a number of other headaches and legal irrationalities.

    For example, what is the point of having a CCW permit document if the cop can check with a computer? Also, compulsorily waiting while the cop checks the computer basically says the permit document is not valid. Police, by making a person wait during a computer check, basically modify the statute to undermine the validity of the permit document. Suddenly the permit document is not legally binding on the cop until he decides it is by checking the computer. Basically, to a certain extent, and for a hopefully brief period, the cop can say your permit is not valid until he checks it. This computer check of CCW permits is almost absurd. It needs to be just like passports and drivers licenses before the days of computers: the document itself is the object that carries legal weight. No other nonsense needs to be attached to the document.

    One of the arguments we got in years past from a particular cop on this forum was that a permit might have been revoked and never turned in, so it was good to computer check them so cops could seize revoked permits. Specious argument, of course. Its just a fishing expedition, compelling most law-abiding citizens to wait while the cop checks to see if he has a keeper on his hook. And, if it was really all that important to recover a revoked permit document, deputies or police would actually make an effort to go and get the damned revoked permit. Not wait around until the revoke-ee happened to bump into a cop during a traffic stop or something. The fact that courts, deputies, and cops don't make much of an effort to actually go and seize the revoked permit is all the evidence you need that they know its just not that important. They know they can't stop a genuine permittee-turned-offender from carrying if he wants to.
    Last edited by Citizen; 02-26-2012 at 02:26 AM.

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    Quote Originally Posted by Oh Shoot View Post
    All a constitutionally interesting argument, but rather moot here, since TN statute specifically mentions that a LEO may ask to see your handgun permit at any time, and you must comply.
    Um, no - that is the whole point of having a constitution - to override statutes and limit the power of government like rock beats scissors.

    There is a cannon of statutory construction to do this in a friendly way - it goes somthig like this: "If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed, even though in some instances this maxim has caused the Court to read a statute in a manner which defeats or impairs the legislative purpose."

    So as applied to Tennessee's firearms carry statutes, the statute arguably should be construed, under Delaware v. Prouse and the cannon above, to limit the power of police to seize open carriers to check permits to instances where the police have already lawfully seized the individual pusuant to reasonable suspicion.

    Since the legislature does not have the power to override the Fourth Amendment, the statute can either be construed such that it can be executed without without violating the constitution, or it must be struck down in it's entirety.

    Perhaps if the AG is friendly toward gun rights in Tennesse, an opinion about the limited scope of police power to demand permit production under the carry permit statute could be obtained.

    That reminds me, does'nt TN still unlawfully demand SSN disclosure to buy guns from dealers? Why has nobody sued the state on that issue?

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    Quote Originally Posted by Mike View Post
    Um, no - that is the whole point of having a constitution - to override statutes and limit the power of government like rock beats scissors.

    There is a cannon of statutory construction to do this in a friendly way - it goes somthig like this: "If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed, even though in some instances this maxim has caused the Court to read a statute in a manner which defeats or impairs the legislative purpose."

    So as applied to Tennessee's firearms carry statutes, the statute arguably should be construed, under Delaware v. Prouse and the cannon above, to limit the power of police to seize open carriers to check permits to instances where the police have already lawfully seized the individual pusuant to reasonable suspicion.

    Since the legislature does not have the power to override the Fourth Amendment, the statute can either be construed such that it can be executed without without violating the constitution, or it must be struck down in it's entirety.

    Perhaps if the AG is friendly toward gun rights in Tennesse, an opinion about the limited scope of police power to demand permit production under the carry permit statute could be obtained.

    That reminds me, does'nt TN still unlawfully demand SSN disclosure to buy guns from dealers? Why has nobody sued the state on that issue?
    In TN (and I would assume most states) the law and the constitution assumes all statutes to be constitutionally valid unless challenged in court and the court then the court rules them invalid.

    There is a case in the court system now challenging the constitutionality of 39-17-1307 so I guess we will see what happens. As I said before, I personally believe it is, at least as written. But I'm afraid the current case is not the best one to challenge it...

    TN's AG is very un-friendly toward firearms.

    It's been a while since I've bought a firearm, but I don't remember filling out or giving any additional info besides what was on form 4473. SSNs are required for DLs and Carry permits, but you can choose not have it displayed on the DL or HCP.
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    Quote Originally Posted by Fallguy View Post
    In TN (and I would assume most states) the law and the constitution assumes all statutes to be constitutionally valid unless challenged in court and the court then the court rules them invalid. . . .It's been a while since I've bought a firearm, but I don't remember filling out or giving any additional info besides what was on form 4473. SSNs are required for DLs and Carry permits, but you can choose not have it displayed on the DL or HCP.
    1. Courts though view AG opinions, especially those opinions not later overturned by legislatures, to be pursuasive authorities re statutory construction; the idea would be to get an AG opinion that said that the legislature intended for the police to demand permits only within the scope of normal policing, that is, for good cause, not for harassment and random open carrier checkpoints.

    2. My mistake on SSNs - it's the Tenn. carry permit SSN demands which violate Section 7 of the Federal Privacy Act. See http://www.paed.uscourts.gov/documen...s/06d0225p.pdf - somebody ought to take this down - surely there is a hungry lawyer in Tenn. that could use a $50,000 pay day for filing a 1983 action on this issue.

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    Quote Originally Posted by Mike View Post
    1. Courts though view AG opinions, especially those opinions not later overturned by legislatures, to be pursuasive authorities re statutory construction; the idea would be to get an AG opinion that said that the legislature intended for the police to demand permits only within the scope of normal policing, that is, for good cause, not for harassment and random open carrier checkpoints.
    Many would argue (as I'm sure our AG would) that detaining someone who is openly carrying a handgun to see if they have a permit is "normal policing". As it goes back to what I've been saying...39-17-1307 makes it illegal to posses a firearm. Having a permit is a "defense", so by showing your permit to the officer you are defending yourself against the charge of 39-17-1307.

    No in VA where there is no law against someone openly carrying a handgun...I would argues Yes, detaining someone just because they are openly carrying a handgun violates their rights.

    Quote Originally Posted by Mike View Post
    2. My mistake on SSNs - it's the Tenn. carry permit SSN demands which violate Section 7 of the Federal Privacy Act. See http://www.paed.uscourts.gov/documen...s/06d0225p.pdf - somebody ought to take this down - surely there is a hungry lawyer in Tenn. that could use a $50,000 pay day for filing a 1983 action on this issue.
    Our AG disagrees....

    http://www.tn.gov/attorneygeneral/op/2002/op/op3.pdf

    I doubt TN is the only state that requires SSNs for permits....as you said, if there was money to be made, you think some lawyer somewhere would have filed a suit by now.
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    Quote Originally Posted by Fallguy View Post
    Many would argue (as I'm sure our AG would) that detaining someone who is openly carrying a handgun to see if they have a permit is "normal policing". As it goes back to what I've been saying...39-17-1307 makes it illegal to posses a firearm. Having a permit is a "defense", so by showing your permit to the officer you are defending yourself against the charge of 39-17-1307.

    No in VA where there is no law against someone openly carrying a handgun...I would argues Yes, detaining someone just because they are openly carrying a handgun violates their rights.



    Our AG disagrees....

    http://www.tn.gov/attorneygeneral/op/2002/op/op3.pdf

    I doubt TN is the only state that requires SSNs for permits....as you said, if there was money to be made, you think some lawyer somewhere would have filed a suit by now.
    That AG opinion is totally goofy - says your CHP is a recreational license under 42 USC 666 - not even close. There is money to be made - my lawyer in the case above got $50,000 - a Plaintiff should step forward and get it going.

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    Quote Originally Posted by Mike View Post
    That AG opinion is totally goofy - says your CHP is a recreational license under 42 USC 666 - not even close. There is money to be made - my lawyer in the case above got $50,000 - a Plaintiff should step forward and get it going.
    You should read some of his other ones....
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    Quote Originally Posted by Mike View Post
    ...That reminds me, does'nt TN still unlawfully demand SSN disclosure to buy guns from dealers? Why has nobody sued the state on that issue?
    No, it it not required.

    We fill out 4473 like anyone else. The SSN field is optional.

    - OS

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    "It is unlawful to carry without a permit." = LEO can't just stop you because carrying isn't illegal--just carrying without a permit. He has to reasonably suspect that you don't have a permit or you have committed or are about to commit a crime.

    "It is unlawful to carry. Having a permit is a defense to this crime." = LEO can stop you because carrying is illegal. Having a permit is just a defense after-the-fact.
    Last edited by Overtaker; 02-26-2012 at 09:29 PM.

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    Quote Originally Posted by Overtaker View Post
    "It is unlawful to carry without a permit." = LEO can't just stop you because carrying isn't illegal--just carrying without a permit. He has to reasonably suspect that you don't have a permit or you have committed or are about to commit a crime.

    "It is unlawful to carry. Having a permit is a defense to this crime." = LEO can stop you because carrying is illegal. Having a permit is just a defense after-the-fact.
    That is what I was trying to say, but in much simpler terms....thank you sir.
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    Well said.

    Quote Originally Posted by Overtaker View Post
    "It is unlawful to carry without a permit." = LEO can't just stop you because carrying isn't illegal--just carrying without a permit. He has to reasonably suspect that you don't have a permit or you have committed or are about to commit a crime.
    This is the case in Georgia OC or CC.

    Quote Originally Posted by Overtaker View Post
    "It is unlawful to carry. Having a permit is a defense to this crime." = LEO can stop you because carrying is illegal. Having a permit is just a defense after-the-fact.
    This is the case in Tennessee OC or CC.

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    I'm starting to feel like a stuck record, but until folks figure this out, I'll keep repeating this message...

    It doesn't matter what the law says.
    It doesn't matter what the police are "allowed" to do. If an LEO has a burr in his saddle for you because you are OCing and he doesn't like that, he CAN and WILL do anything in his power to mess with you.

    Understand this.
    Memorize it.
    Deal with it...


    Yes, he CAN run your name.

    Yes, he CAN seize your firearm and run the serial number.

    Yes, he CAN detain--or even ARREST you for not breaking the law--because he will make something up if he's REALLY got it in for you.

    Yes, he CAN handcuff you.

    Yes, he CAN turn off (and even erase) his dash cam.

    Yes, he CAN drive you to a remote location, beat the snot out of you while you're cuffed, and then charge you with "resisting arrest" and "assaulting an officer" when you bleed on his uniform.

    Yes, he CAN just shoot you in the head, and write on his report you made a "furtive movement" toward a weapon.

    And if you survive the encounter with enough of your faculties intact to fill out a few forms, you can file a Federal Civil Rights Violation suit against him, and let the courts sort it out.

    That's what bad cops count on--that the idea that a protracted, emotionally draining, reputation-injuring lawsuit brought by you AGAINST A COP will be enough to make you just take it, and then go away and keep quite after he's had his fun.

    It's not a question of "CAN" they do any of these things--LEOs are HUMAN BEINGS, and therefore they are capable of any number of egregious infringements, abuses, and assaults on other human beings (sadly, this is just one of the negative parts of being human--some humans are sociopaths). People need to understand this, and we ALL need to adopt this awareness as a FUNDAMENTAL FACT.

    The question is whether or not the LEO in question is a pubic servant who honors his oath and respects your rights, or is he not.

    IF the answer to THAT question the only thing you can do is pray for the least amount of hassle, pain and abuse that he can dish out before he's satisfied.

    And then, sue the living #^@% out of him...
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
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    I don't think anyone ever doubted what a LEO could do if he chooses....I took the question to mean what could he "legally' do.

    For some reason I'm reminded of when I was in elementary school and asking the teacher "Can I go to the bathroom?" and their response "I don't know? 'Can' you?" looking for me to say May instead of Can knowing good and well what I meant.
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    Quote Originally Posted by Bandityo View Post
    I know in Ga and TN you can carry open with a CCW permit and the cops have the right to see your license...but do they also have to right to keep you further for them to run a check on your name also if you are only OC ing legally?

    Just curious...

    David
    Where does it say that you have to show a LEO your GWL in Georgia?

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    Quote Originally Posted by RobertB View Post
    Where does it say that you have to show a LEO your GWL in Georgia?
    It doesn't.

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