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"May i see your HCP permit?"

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
12,452
Location
White Oak Plantation
If a permit is required to OC, show the darn permit, while recording the interaction.

Laws can change faster when the state has to pay citizens for the unlawful acts of their employees. If LACs are getting harassed by cops for OC and the state/county/city has to keep writing check to folks who were not breaking the law then the law that requires the permit is more easily repealed, or clarified.

Here in Missouri we are attempting to change the law to permit OC via permit (not the best outcome, but better given RSMo 21.750.3) and as such the legislation included verbiage that OC is not RAS, per se, and that the firearm cannot be confiscated for "officer safety" or the citizen physically restrained (cuffed?).

...(c) In the absence of any reasonable and articulable suspicion of criminal activity, no person carrying a concealed or unconcealed firearm shall be disarmed or physically restrained by a law enforcement officer unless under arrest;...
Follow the law, even if it sucks, and work to change the law via the courts or legislature.
 

Nascar24Glock

Regular Member
Joined
Jun 29, 2011
Messages
252
Location
Johnson City, TN
If a permit is required to OC, show the darn permit, while recording the interaction.

Laws can change faster when the state has to pay citizens for the unlawful acts of their employees. If LACs are getting harassed by cops for OC and the state/county/city has to keep writing check to folks who were not breaking the law then the law that requires the permit is more easily repealed, or clarified.

Here in Missouri we are attempting to change the law to permit OC via permit (not the best outcome, but better given RSMo 21.750.3) and as such the legislation included verbiage that OC is not RAS, per se, and that the firearm cannot be confiscated for "officer safety" or the citizen physically restrained (cuffed?).

Follow the law, even if it sucks, and work to change the law via the courts or legislature.

See, that's the thing. In Tennessee, with a few narrow exceptions, being in possession of a firearm is illegal. PERIOD. Being in your own home or having a handgun carry permit is a defense to the charge, not an exception. This means that, even if you do have a permit or are in your home, an officer could still in theory arrest you. Once charged, the prosecutor could force your case to go to trial, where you would have to show your handgun carry permit or your house deed to the jury. Then, once you're acquitted, an officer could in theory follow you to the evidence room where you would reclaim your weapon, re-arrest you once it's in your possession, and start the above process all over again.

Now, thankfully, I'm not aware of any instances of that actually happening. But, it could happen the way Tennessee law is currently written.
 

Ken56

Regular Member
Joined
Oct 29, 2010
Messages
368
Location
Dandridge, TN
Nascar is correct here and that is what others from other states don't get. Here in TN it is illegal to posess/carry a firearm, loaded or unloaded unless in transport mode (cased and unloaded in your trunk or secured otherwise) in public. We can carry in our own home or on property we own but if we step off of that property we become criminals......unless we have paid the state for the priviledge of a handgun carry permit to exercise our god given right. And yes, it is a defence, not an exception to the law as written now. I am a transplant to TN from MI and MI is a traditional open carry state, meaning there are no laws against openly carrying a firearm with no licencing needed what so ever, there is no law against it so it is legal. Not so in TN. There is a law against it so........you must pay the state to exercise your rights. Unbelievable I know. The TN HCP allows for concealed OR open carry, and LEOs mostly do not mess with people who do openly carry. I have not yet had the pleasure of an interaction as yet. Most folks don't care if your openly carrying, atleast where I am at, cuz they are probably carrying concealed.
 

cjohnson44546

Regular Member
Joined
Nov 8, 2013
Messages
188
Location
Memphis, TN
What needs to be fixed in TN is that "No Gun" signs carry the weight of law... that is ridiculous. Should all signs put up on private property carry the weight of law? "No outside food or drinks allowed" uh oh, I'm getting arrested because I had a candy bar in my pocket... "No Cameras" oh no I'm getting arrested for having my phone with me... No one should be able to put up a sign on their property that has weight of law to it. I am all for the owner to be able to kick someone off their property and having people charged with trespassing if they refuse... but they should have to directly tell that person to get lost, not some blanket statement sign that causes a person to be a criminal. This is my biggest fear if the Open Carry law had passed... hundreds or thousands of new "no gun" signs going up all over the place...

Some people I know say they ignore the signs, because if they need their gun, then they need it. According to TN law, you can NEVER act in self defense if you are committing a crime. So if your committing a crime of trespassing (whether anyone knows or not), and someone attacks you, tries to kill you... and you kill them (with or without the gun your carrying), you cannot legally claim self defense, because you killed someone while committing a crime... you are now under arrest for murder.

lol, yeah it definitely put him at a serious tactical disadvantage.
At close quarters like that... a piping hot cup of coffee in your hand is not a tactical disadvantage, and thrown in the face would allow you to subdue someone really quick.

Agreed. TN law makes carrying a loaded handgun illegal-even with your permit. Unconstitutional. TN law requires that any permit holder that is armed to display their permit to any LEO who asks for it-even without RAS of a crime. Unconstitutional.
thats not completely true. With a HCP you CAN carry a loaded handgun. You can also carry long guns in your vehicle, and while they can have rounds loaded in magazines, they are not allowed to have one in the chamber unless you are in the active process of defending your life. Handguns can be fully loaded and carried ready to fire, if you have a HCP.
 
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Nascar24Glock

Regular Member
Joined
Jun 29, 2011
Messages
252
Location
Johnson City, TN
thats not completely true. With a HCP you CAN carry a loaded handgun. You can also carry long guns in your vehicle, and while they can have rounds loaded in magazines, they are not allowed to have one in the chamber unless you are in the active process of defending your life. Handguns can be fully loaded and carried ready to fire, if you have a HCP.

What SovereignAxe said is correct.

Yes, the HCP "allows" you to carry a loaded handgun. But, read the statute. In most states, unlicensed carrying (concealed at least, plus openly in some others) is illegal; but, having a carry permit is an exception to the charge. Whenever an exception applies, it nullifies the illegality of the act. Further, if a defendant alleges that an exception applies, then the burden of proof is on the prosecutor to prove that the exception does not apply (for example, if a person in one of the other states is arrested for illegal carrying and claims to have a permit, a prosecutor in that state would have to prove that the permit exception did not apply, such as by proving that the permit was forged). However, in Tennessee, it is illegal to carry a gun in public without a permit; and the permit is only a defense to the charge. This has three ramifications. First, it means that the person's actions were still against the law; a defense simply gives a legally-justified reason for breaking the law. Thus, even if a person makes a police officer aware of the fact that he/she has a defense to a charge (in this case illegal carrying), the officer still has the full authority to arrest him/her (arresting a person when he/she notifies the officer of an exception to the charge could trigger legal liability for the officer based on false arrest; the same is not true when a person has a defense to a charge). Second, it effectively nullifies court precedence for RAS in Tennessee. A couple of appellate courts (and maybe even the Supreme Court) have ruled that mere possession of a weapon does not in and of itself create reasonable articulable suspicion if carrying a gun is not illegal in that state (or if it is illegal, but a permit is an exception to the charge). Since carrying a firearm is illegal even with a permit (remember, the permit is only a defense), then possession of a firearm in Tennessee automatically creates reasonable articulable suspicion for a police officer to stop and detain the carrier, ask him/her questions, and demand identification. Three, when a person has a defense to a charge rather than an exception, then the defendant has to prove his/her innocence by proving (albeit by a preponderance of the evidence, a lower standard of proof) that the defense applies.

In practice, there's not much difference. But, because a permit is a defense rather than an exception in Tennessee, it has significant legal ramifications.
 
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cjohnson44546

Regular Member
Joined
Nov 8, 2013
Messages
188
Location
Memphis, TN
What SovereignAxe said is correct.

Yes, the HCP "allows" you to carry a loaded handgun. But, read the statute. In most states, unlicensed carrying (concealed at least, plus openly in some others) is illegal; but, having a carry permit is an exception to the charge. Whenever an exception applies, it nullifies the illegality of the act. Further, if a defendant alleges that an exception applies, then the burden of proof is on the prosecutor to prove that the exception does not apply (for example, if a person in one of the other states is arrested for illegal carrying and claims to have a permit, a prosecutor in that state would have to prove that the permit exception did not apply, such as by proving that the permit was forged). However, in Tennessee, it is illegal to carry a gun in public without a permit; and the permit is only a defense to the charge. This has two ramifications. First, it means that the person's actions were still against the law; a defense simply gives a legally-justified reason for breaking the law. Thus, even if you make a police officer aware of the fact that you have a defense to a charge (in this case illegal carrying), the officer still has the full authority to arrest you (arresting you when you notify the officer of an exception to the charge could trigger legal liability for the officer based on false arrest; the same is not true when you have a defense to a charge). Second, when a person has a defense to a charge rather than an exception, then the defendant has to prove his/her innocence by proving (albeit by a preponderance of the evidence, a lower standard of proof) that the defense applies.

In practice, there's not much difference. But, because a permit is a defense rather than an exception in Tennessee, it has significant legal ramifications.

I'd like more info on this... if you have any links. From all i've read, I've never read anything that implied this "its still illegal" thing...
 

Nascar24Glock

Regular Member
Joined
Jun 29, 2011
Messages
252
Location
Johnson City, TN
I'd like more info on this... if you have any links. From all i've read, I've never read anything that implied this "its still illegal" thing...

First, you might want to go back and read my post again. I added another point to it.

Second, I'll tell you that this is a legal theory at work here. Most people will simply say "yeah, as long as you get the permit, carrying a handgun is legal in Tennessee" because that's how it works IN PRACTICE. But, because of the way our law is technically written, a tyrant sheriff and prosecutor in a given county could theoretically use it to harass gun owners to the point of effectively banning firearms ownership in their county.

I'll explain it a little further in the next post.
 

Nascar24Glock

Regular Member
Joined
Jun 29, 2011
Messages
252
Location
Johnson City, TN
I'd like more info on this... if you have any links. From all i've read, I've never read anything that implied this "its still illegal" thing...

Let me start by showing you the law in another state, in this case Virginia.

§ 18.2-308. Carrying concealed weapons; exceptions; penalty.

A. If any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon...he is guilty of a Class 1 misdemeanor.

B. This section shall not apply to any person while in his own place of abode or the curtilage thereof.

C. Except as provided in subsection A of § 18.2-308.012, this section shall not apply to:

1. Any person while in his own place of business;

2. Any law-enforcement officer, wherever such law-enforcement officer may travel in the Commonwealth;

3. Any person who is at, or going to or from, an established shooting range, provided that the weapons are unloaded and securely wrapped while being transported;

4. Any regularly enrolled member of a weapons collecting organization who is at, or going to or from, a bona fide weapons exhibition, provided that the weapons are unloaded and securely wrapped while being transported;

5. Any person carrying such weapons between his place of abode and a place of purchase or repair, provided the weapons are unloaded and securely wrapped while being transported;...

Also, here's another section.

§ 18.2-308.01. Carrying a concealed handgun with a permit.

A. The prohibition against carrying a concealed handgun in clause (i) of subsection A of § 18.2-308 shall not apply to a person who has a valid concealed handgun permit issued pursuant to this article.

Notice that both of these lists of exceptions have words such as "this section shall not apply to..." or "the prohibition...shall not apply to..." This means that the presence of these conditions nullifies the illegality of the prohibition. Further, if a person claims to fall within the confines of one of these provisions, it is the prosecutor's job to prove that the exception does not apply.
 

Nascar24Glock

Regular Member
Joined
Jun 29, 2011
Messages
252
Location
Johnson City, TN
Now, let's compare that to Tennessee's law

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.

So far, the laws are similar. This one states the prohibited act in a manner similar to Virginia's law (though, it is worthy to note that Virginia's law prohibits only concealed carry; unlicensed open carry is legal in Virginia; Tennessee bans both forms of unlicensed carry).

(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.

This part is similar to Virginia's law in listing exceptions to the charge. But, notice the very narrow scope of these two exceptions. Some of the broader ones (such as being in one's home or having a carry permit) are notably absent. They can be found in the "defenses" section.

39-17-1308. Defenses to unlawful possession or carrying of a weapon.

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

(1) Of an unloaded rifle, shotgun or handgun not concealed on or about the person and the ammunition for the weapon was not in the immediate vicinity of the person or weapon;

(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315 or § 39-17-1351; (section 1351 is the handgun permit section)

(3) At the person's:

(A) Place of residence;

(B) Place of business; or

(C) Premises;

(4) Incident to lawful hunting, trapping, fishing, camping, sport shooting or other lawful activity;

(5) By a person possessing a rifle or shotgun while engaged in the lawful protection of livestock from predatory animals.... (plus five other job-specific defenses)

Now, here's the section I was talking about where it said having a permit or being in one's own home is a "defense" to the charge, not an exception. Here is where that becomes legally significant.

39-11-203. Defense.

(a) A defense to prosecution for an offense in this title is so labeled by the phrase: "It is a defense to prosecution under ... that ..."

(b) The state is not required to negate the existence of a defense in the charge alleging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless it is fairly raised by the proof.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall instruct the jury that any reasonable doubt on the issue requires the defendant to be acquitted.

Now, I will go back and correct something I said earlier. Tennessee law does distinguish a "defense" from an "affirmative defense". In an "affirmative defense", the defendant must prove by a preponderance of the evidence that the defense applies. A "defense" does not require this level of proof but does, as I underlined above, still put the initiative on the defendant to present proof of innocence.
 
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independence

Regular Member
Joined
Jul 10, 2013
Messages
339
Location
Tennessee
cjohnson,

Nascar and the others are correct. In case you are wanting the short version of what Nascar just said, it can be found at this link...

http://www.lexisnexis.com/hottopics/tncode/

...By searching for...

39-17-1308

...which will yield...

39-17-1308. Defenses to unlawful possession or carrying of a weapon.

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

(1) Of an unloaded rifle, shotgun or handgun not concealed on or about the person and the ammunition for the weapon was not in the immediate vicinity of the person or weapon;

(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315 or § 39-17-1351;

...As you probably know, that last reference to 1351 is the HCP law.

As Nascar says, this is a literal and legal reading of the law. That doesn't mean that all cops in all jurisdictions in the state are going to treat it that way. But you do have to be careful because a cop or prosecutor could use this law against you.

I'm not a lawyer, btw. Consult a legal professional for a professional interpretation...
 

cjohnson44546

Regular Member
Joined
Nov 8, 2013
Messages
188
Location
Memphis, TN
Thanks for all that info... I had never noticed a difference between the word "defense" and "exception" before, so I really never noticed the difference in words there. Thats some great info!
 

Fallguy

Regular Member
Joined
Sep 21, 2007
Messages
715
Location
McKenzie Tennessee, USA
Some people I know say they ignore the signs, because if they need their gun, then they need it. According to TN law, you can NEVER act in self defense if you are committing a crime. So if your committing a crime of trespassing (whether anyone knows or not), and someone attacks you, tries to kill you... and you kill them (with or without the gun your carrying), you cannot legally claim self defense, because you killed someone while committing a crime... you are now under arrest for murder.

That is not entirely accurate.

First there is 39-17-1322 that says....

"A person shall not be charged with or convicted of a violation under this part if the person possessed, displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim."

This part means Part 13 of Chapter 17, Title 39 or in other words any law that is 39-17-13xx, including 39-17-1359. So even if you were carrying passed a legally compliant 39-17-1359 sign, if you used your firearm in self-defense 39-17-1322 would apply.

Also even you are acting illegally under some other part of the law, you can still claim self-defense, you just loose the "no duty to retreat" before using force. Plus it may be pretty hard to prove depending on the situation.

39-11-611(b)(1) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.

39-11-611-(b)(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.
 
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DarksWife07

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Apr 8, 2014
Messages
7
Location
Nashville,TN
See, that's the thing. In Tennessee, with a few narrow exceptions, being in possession of a firearm is illegal. PERIOD. Being in your own home or having a handgun carry permit is a defense to the charge, not an exception. This means that, even if you do have a permit or are in your home, an officer could still in theory arrest you. Once charged, the prosecutor could force your case to go to trial, where you would have to show your handgun carry permit or your house deed to the jury. Then, once you're acquitted, an officer could in theory follow you to the evidence room where you would reclaim your weapon, re-arrest you once it's in your possession, and start the above process all over again.

Now, thankfully, I'm not aware of any instances of that actually happening. But, it could happen the way Tennessee law is currently written.


Again, you are wrong. As long as you have a permit, you can CC/OC in Tn. I do it everyday.
 

Fallschirjmäger

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Aug 4, 2007
Messages
3,823
Location
Cumming, Georgia, USA
In general, there are two ways laws are written:
A) "Every driver shall have a valid driving license in his or her immediate possession.."
or
B) "It is illegal to drive without a permit..."
With A) there is no suspicion of illegality from merely seeing someone drive, with B) there is a suspicion because it's illegal to drive without..."

It's a small but sometimes critical difference in the way the laws are written and often easily overlooked.

In the particular case of Tennessee, the law reads
"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 (4²), or a club.....
An officer has reasonable suspicion that a violation of 39-17-1307(a)(1) is occurring as soon as he becomes aware of a person carrying a weapon. Having a weapons license is a defense to the charge.
 
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FTG-05

Regular Member
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Feb 28, 2011
Messages
441
Location
TN
Again, you are wrong. As long as you have a permit, you can CC/OC in Tn. I do it everyday.

Your two statements have nothing do with each other.

I too, OC every day here in TN. In and of itself, that statement has nothing to do with the fact that Nascar is exactly correct. You need to reread the thread, he posts the exact legal language.
 

Oh Shoot

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Aug 9, 2010
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Knoxville
Your two statements have nothing do with each other.

I too, OC every day here in TN. In and of itself, that statement has nothing to do with the fact that Nascar is exactly correct. You need to reread the thread, he posts the exact legal language.

Yep. If a LEO wants to arrest you even though you have shown a permit, he could. Your permit would exonerate you in court. But you'd likely have no recourse for false arrest. Any offense which merely has a "defense" written for it would be same, which includes possessing loaded firearms even in your home. An "exception" is stronger, such as that for simply possessing firearms in your vehicle.

This is what happens when you start out with the premise that possession of a loaded firearm is unlawful and then add a passel of defenses, affirmative defenses, and exceptions to that, rather than start with no prohibitions at all and add a few specific ones.

- OS
 

DarksWife07

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Apr 8, 2014
Messages
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Nashville,TN
See, that's the thing. In Tennessee, with a few narrow exceptions, being in possession of a firearm is illegal. PERIOD. Being in your own home or having a handgun carry permit is a defense to the charge, not an exception. This means that, even if you do have a permit or are in your home, an officer could still in theory arrest you. Once charged, the prosecutor could force your case to go to trial, where you would have to show your handgun carry permit or your house deed to the jury. Then, once you're acquitted, an officer could in theory follow you to the evidence room where you would reclaim your weapon, re-arrest you once it's in your possession, and start the above process all over again.

Now, thankfully, I'm not aware of any instances of that actually happening. But, it could happen the way Tennessee law is currently written.

I've been OC'ing for awhile now & I haven't been ask to see my ID or permit. Last year my Husband & I went downtown for the 4th of July,We rode a MTA bus (oc'ing).
I called 1st to see what their rules were & as long as we had our permits,we can oc on any MTA bus in Nashville. We OC everywhere we go with no issues.
 

Fallschirjmäger

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Aug 4, 2007
Messages
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Location
Cumming, Georgia, USA
You and your husband are to be applauded and that's the way it should be.

But at the same time, please remember that it does not change the way the law reads.
 
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