some serious questions for open carriers in the state

suntzu · Oct 2, 2008

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Ok, so here are the questions I have today.

Tennessee law states under 39-17-1351 that "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."

I emboldened the word "reasonably" because this seems to be the crux of the issue. Can a law enforcement officer disarm you just because he/she wants to, does his reasons for doing so have to be articulable, and what exactly constitutes "reasonable belief"?

Following scenario seems to be the most prevalent from what I have been reading--you are walking out of walmart, or out of some other big box store, or merely walking down the street, legally possessing a firearm and carrying it openly. A leo stops you simply because you are carrying--you ask if you are being detained, they become argumentative and begin trying to get you to become cooperative through whatever means they employ--from what I have been reading it generally amounts to some form of intimidation--all of which you have on audio, because you dutifully carry your digital voice recorder. Can the leo disarm you, pat you down and search you even if you have committed no crime? If they seize your recorder to prevent you from recording--what are your options?

I have read several such instances in Virginia--seems like there are a lot of them there--of people being stopped simply because they were carrying, but what of Tennessee?

It seems like this is the most prevalent incidence with leos on this board.

Next question--how many here have been stopped, and what were the outcomes? As I have only recently joined and from the looks of it there has not been that many instances of leo encounters here. The few incidences I did read about here seemed to come out of Maryville with the BCSO, with one incident making it into the Knox News sentinel online website with a stop at a walmat in Knox County. for simply possessing a firearm openly.

I guess the gist of all of this is--exactly how prevalent is the stop/search toward open carriers in this state? Has anyone asked the question "am I being detained", and if so what was the outcome/general attitude of the leo? Has anyone refused to consent to a search and if so, were you arrested anyway, were you searched against your consent or did they become verbally abusive? Has anyone here had your Constitutional rights violated as a result of open carry?

I'm asking for general experiences. I know the desired outcome is to educate the public while proactively defending ourselves and loved ones--I know the desire is to have positive outcomes with leos, but desired outcomes are not necessarily the outcomes we experience in public.

Before anyone asks--I'm not anti-leo. I am working toward my permit and am trying to gather all of the information I can on the laws, on my rights, and on what I can expect from the police, even though the atty. general has already opined that OC is legal in the state. I am more aware of where we may and may not carry, and since coming to this forum I have become much less afraid of the citizenry carrying guns openly, and wish more would do so--I recently saw a friend of mine who was open carrying--and a year ago it would have bothered me, but when I saw him carrying a Glock 19 last week it didn't phase me, and if anyone else saw it, it didn't seem to bother them either.

Here is the final thing...I know no one is a lawer--not asking for a legal opinion--that is what a lawyer is for, which I intend to consult prior to carrying for the first time--to cover my bases so to speak. What I am asking for is opinions and experiences from those who have been there...I am still very much a newbie--but I am however doing my research and learning all that I can.

I know this has been long winded, but I wanted to make sure that I got everything in.

Task Force 16 · Oct 2, 2008

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AS to your first question concerning "reasonably believes", I'd say that would be subjective, and depends on the officer you encounter and why you are encountering him/her. If the officer is responding to a MWG call they may want to disarm you until they can assertain that you have a valid permit and aren't up to no good. Or they might make a big scene out of it and draw their weapon on you andn do the whole takedown BS to disarm you and THEN ask you to produce a HCP. Like I said it depends on the officer.

If you are pulled over for a traffic stop, it's best to let the officer know you are armed and produce your HCP right from the get go. (LEO's don't like surpirses) Since they probably don't know you from a fence post they probably will dissarm you until they are finished with the stop (unless they've caught you DUI). But this still depends on the officer that pulls you over. Some are curtious and proffesional while others may be asses.

Your second question, We have to have a HCP to carry, and in my opinion, LE wouldn't be doing their job if they didn't check to see if you have a permit to carry legally. How they go about this will depend on the officer.

Your third question I can't answer. I'm still waiting for my HCP so haven't started carrying yet. From what I've found out, in asking some of the local businesses here I shouldn't have any problems, but we'll see.

Fallguy · Oct 3, 2008

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A big difference between VA and TN is that in VA you do not need a permit to OC, but in TN you do.

In TN it is generally illegal to carry a handgun period, but the law says it is a defense if you have a HCP. More or less meaning you have to defend yourself you prove yourself legal. So if you OC in TN as far as a LEO knows you are breaking the law until he detains you and sees if you have a HCP.

That being said, I have heard of very few incidents with LEOs and HCP holders in TN.

As far as a LEO disarming you...I really don't think there is much you could do about it at the time of the stop. If you felt his actions were not reasonable you could follow up with the department later, but to be honest I doubt it would do much good unless the LEO was WAY out of bounds.

As far as the above advise to handover your HCP and notify and an officer immediately you are armed on a traffic stop.....well I think it all depends on the situation. There are times that bringing it up could make an issue out of something that otherwise may not even come up. But I agree LEOs don't like surprises and if for some reason he is going to search you or your vehicle I would inform him before he just found it.

WCrawford · Oct 3, 2008

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I can only give you my limited experiences of open carrying in downtown Nashville and (supposedly) crime ridden East Nashville.

I've been open carrying for about 6 weeks now. I've not had the police called on me. I go into gas stations, grocery stores, Walmart, McDonalds, everywhere. I've chatted with a police officer who either didn't notice or didn't care that I was chatting openly. I've had store clerks tell me that they feel a little safer when I enter because they know that I'm armed. Others have asked how they can do the same.

Do I get :what:looks? Sometimes, but no one has been so terrified by the sight of a man with a gun to call the police.

Will I always have uneventful OC trips? No clue, but I prepare myself for the worst while hoping for the best every time I leave my house.

SlackwareRobert · Oct 3, 2008

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As for the recording, hide it where only Barny Frank would look to be safe:banghead:

Seriously though, I use multiple, car is bugged, and peson is bugged, and
i'm looking at these new video pens. Most low forhead type LEO's
that are the problem, don't think in more than one's. Might be adding
a mp3 recorder to the handgrip of pistol next, then I get the police car audio
while my gun is in 'custody'. It will cost me a round in the mag, but might
be well woth it in the long run with bad incounters, and most profitable hopefully.
Plus if they ballistic it I will have them stealing my property. Gotta love
the new technologies.

Question: Which do you think for better audio, clip or grip? They will be seperated
but which is closer to the leo in car? Is he more anal abaut mag or pistol?

fullauto223cal · Oct 4, 2008

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I'm going though recruit training at my department now. I've kept my thoughts regarding open carry to myself but I have asked different senior officers there thoughts on the matter. As far as I can discern most of them don't care enough to actually pursue the issue unless they are responding to a call for service or the person in question is carrying in an unprofessional manner (tucked into the small of the back)

Are there knuckle heads, sure, but are there level headed cops who like to see the law abiding taking the means to protect themselves, YES!! I haven't talked to a senior officer yet who was against the idea in principal.

As far as police departments requiring their officers to conceal I finally have an answer. It has nothing to do with tactical advantage. The real reason comes down to liability. According to state law any LEO who witnesses a crime or is informed of a crime having taken place has a duty to render aid an arrest the suspect. Concealing your badge and gun off duty allows an LEO the option of intervention in a life or death situation or fading into the crowd and calling the uniformed guys for something less. I've been told by more than one senior officer that when I'm off, I'M OFF! They seriously frown cops being cops out of uniform and I agree for good reason. I don't wear my vest 24hrs a day and I'd rather not get in a gun battle without it if I did not have to.

When being stopped by an LEO don't give them any reason to think that open carriers are anything less than top notch folks. All it takes is few good encounters before it makes it around the station that it's no big deal. The same could be said for the opposite as well.

Be safe and if I ever meet one of you guys on duty I won't be one to give you hell.

suntzu · Oct 11, 2008

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Task Force 16 wrote:

AS to your first question concerning "reasonably believes", I'd say that would be subjective, and depends on the officer you encounter and why you are encountering him/her. If the officer is responding to a MWG call they may want to disarm you until they can assertain that you have a valid permit and aren't up to no good. Or they might make a big scene out of it and draw their weapon on you andn do the whole takedown BS to disarm you and THEN ask you to produce a HCP. Like I said it depends on the officer.

If you are pulled over for a traffic stop, it's best to let the officer know you are armed and produce your HCP right from the get go. (LEO's don't like surpirses) Since they probably don't know you from a fence post they probably will dissarm you until they are finished with the stop (unless they've caught you DUI). But this still depends on the officer that pulls you over. Some are curtious and proffesional while others may be asses.

Your second question, We have to have a HCP to carry, and in my opinion, LE wouldn't be doing their job if they didn't check to see if you have a permit to carry legally. How they go about this will depend on the officer.

Your third question I can't answer. I'm still waiting for my HCP so haven't started carrying yet. From what I've found out, in asking some of the local businesses here I shouldn't have any problems, but we'll see.

But the Tennessee Constitution itself says that the people have the right to keep and bear arms "§ 26. That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

If the citizens have the right to keep and bear arms--I assume the carrying of arms is generally ilegal because of the section which says that the legislature has the power to regulate the wearing of arms? Assuming this refers to 39-17-1307 unlawful possession of a weapon with the intent to go armed?

-1351 is the defense of a handgun permit. now the most natural question I have with all of this:

under what circumstances may a LEO conduct a felony stop on a person who is peaceably carrying a firearm openly? Obviously a criminal isn't going to be sufficiently stupid enough to carry openly--but under what circumstances may a leo conduct a felony stop with guns drawn, face down, cuffed--the whole nine yards? I am going to assume that this would be done to make a point--they would never admit it of course--but that is what it all comes down to....now if you are peaceably carrying--can they legally conduct a felony stop simply to do it?

the crux of all of this is I think summed up in this "does the peaceable open carry of a firearm by itself, in the absence of any other circumstances or issues give the leo grounds to conduct a felony stop without violating your Consitutional rights?

Fallguy · Oct 11, 2008

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suntzu wrote:

the crux of all of this is I think summed up in this "does the peaceable open carry of a firearm by itself, in the absence of any other circumstances or issues give the leo grounds to conduct a felony stop without violating your Consitutional rights?

I would say it would definitely give him the right to stop you and question you. As you said and I agree the carry of firearm in illegal in TN, having a HCP is simply a defense to that. So as far as the LEO knows you are breaking the law until you can defend yourself by presenting your HCP.

Whether he chooses to detain/stop you in a felony manner would depend on the situation I would think.

suntzu · Oct 11, 2008

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Fallguy wrote:

suntzu wrote:

the crux of all of this is I think summed up in this "does the peaceable open carry of a firearm by itself, in the absence of any other circumstances or issues give the leo grounds to conduct a felony stop without violating your Consitutional rights?

Click to expand...

I would say it would definitely give him the right to stop you and question you. As you said and I agree the carry of firearm in illegal in TN, having a HCP is simply a defense to that. So as far as the LEO knows you are breaking the law until you can defend yourself by presenting your HCP.

Whether he chooses to detain/stop you in a felony manner would depend on the situation I would think.

Then why don't we all move to Virginia......carry of a firearm there is a right of the people--the same as it should be here....

We need to change the laws here.

Fallguy · Oct 11, 2008

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I agree...there are many law changes I would like to see here.

Also as I know most, if not all, members of this boads know, there are many states that allow open carry without permit and a couple that allow carry period without a permit.

suntzu · Oct 11, 2008

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Fallguy wrote:

I agree...there are many law changes I would like to see here.

Also as I know most, if not all, members of this boads know, there are many states that allow open carry without permit and a couple that allow carry period without a permit.

So how can we go about trying to get the law changed to make possession of a handgun legal, considering even the Tn. Constitution states that we have the right to keep and bear arms?

I know that 1351 is a defense--but if we have the right-why should we have to have a defense such as a permit? I'm not against permits--I just think that in Tn. possession of a firearm should generally be legalized like it is in Virginia...it is silly to give a right and then demand that we prove we are legal--why give the right at all?

of course Va. has their problems--some issues arising in Norfolk now from what I have been reading--so no state is perfect...but Tn. needs some laws changed...

I think we should be allowed to carry into city/county facilities such as town meetings and county commission meetings--I think it should be somewhat more difficult for businesses to prohibit firearms--unless they prohibit law enforcement as well....we should be allowed to carry in state parks...crime does not take a break just because you are in a state/county/city controlled environment.

so how can we start to get the laws changed?

Fallguy · Oct 11, 2008

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There are basically two things, as I see it, that are needed to change some of TN laws on Firearms.

1. Time (Unfortunately) There is simply no way all things that we would like to see changed are going to happen quickly.

2. Jim Nafieh removed as Speaker of the House. No substantial pro-gun laws are going to pass as long as he is the Speaker of the House. The only way that is going to change is if there is a majority of Republicans in the house, or if there are enough Democrats willing to vote for someone else. The later was tried last session, but the person they were going to vote for changed his mind at the last minute and Nafieh was re-elected.

I think places that are open to the public should not be allowed to post or at least the posted sign not carry the weight of law. I would like to see all the restrictions on places to carry removed, except with maybe rooms where a judicial proceeding is taking place. I would like to see BAC amount on Carry under the influence instead of it being up to the LEOs discretion. I would like to see us be able to carry loaded long guns. I would like for property owners to be exempt from any lawsuits for the actions of a HCP holder while on their property.

FYI carryis allowed in city/county/state facilities (except for parks and recreational) unless they are properly posted per 39-17-1359.

WCrawford · Oct 11, 2008

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Fallguy wrote:

I think places that are open to the public should not be allowed to post or at least the posted sign not carry the weight of law. I would like to see all the restrictions on places to carry removed, except with maybe rooms where a judicial proceeding is taking place. I would like to see BAC amount on Carry under the influence instead of it being up to the LEOs discretion. I would like to see us be able to carry loaded long guns. I would like for property owners to be exempt from any lawsuits for the actions of a HCP holder while on their property.

FYI carry at is allowed in city/county/state facilities (except for parks and recreational) unless they are properly posted per 39-17-1359.

I have no problem with any open to the public (including government buildings) facility being allowed to prohibit firearms, but I would require those facilities to provide lock boxes or lockers at no cost for armed patrons to store their weapons, post licensed armed guards (not off duty police) and metal detectors at every entrance (including service entrances and loading docks). The business owner or property manager would also be held criminally and civilly responsible for the safety of employees and patrons.

BTW, I OCd at the old Howard School building in Nashville on Monday. I took my fiancee to register to vote. I didn't even get a :what: look.

suntzu · Oct 11, 2008

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WCrawford wrote:

Fallguy wrote:

I think places that are open to the public should not be allowed to post or at least the posted sign not carry the weight of law. I would like to see all the restrictions on places to carry removed, except with maybe rooms where a judicial proceeding is taking place. I would like to see BAC amount on Carry under the influence instead of it being up to the LEOs discretion. I would like to see us be able to carry loaded long guns. I would like for property owners to be exempt from any lawsuits for the actions of a HCP holder while on their property.

FYI carry at is allowed in city/county/state facilities (except for parks and recreational) unless they are properly posted per 39-17-1359.

Click to expand...

I have no problem with any open to the public (including government buildings) facility being allowed to prohibit firearms, but I would require those facilities to provide lock boxes or lockers at no cost for armed patrons to store their weapons, post licensed armed guards (not off duty police) and metal detectors at every entrance (including service entrances and loading docks). The business owner or property manager would also be held criminally and civilly responsible for the safety of employees and patrons.

BTW, I OCd at the old Howard School building in Nashville on Monday. I took my fiancee to register to vote. I didn't even get a :what: look.

So we become like the Israelis? The Israelis do this exact thing--posting armed guards in facilities, metal detectors--so you would be content with surrendering your rights for the sake of businesses--and governments feeling "secure"--but secure from whom? From us? From the people? If business(es) and governments were allowed to limit the places you can carry--which they are trying to do--who exactly are they trying to protect themselves from? I say it again--criminals are NOT going to respect "no firearms laws"--and metal detectors? I would not want to live in a society that had metal detectors at the entrance of every building I went into--makes me think of Orwell's 1984.

you mentioned holding the business owners criminally and financially responsible for the safety of employees and patrons--if I am a patron and someone comes in shooting up the place--what good does the money do if I become a casualty simply because the people gave up their rights in order to make the government/business owners feel safer from us citizens? Who is the enemy here--the citizens or the criminals who will never obey the laws regardless of how many you pass? If you need an example--look at Virginia Tech...."no firearms on campus" did those students so much good. When the shooting started at Virginia Tech--where was security? That is something else that should be changed in the state laws here--students who are 21 should be allowed to carry on college campuses in the state of Tennessee, openly and concealed.

Someone once posted a sign on here I think-- that I just loved--it basically said--firearms prohibited, criminals and thugs feel free to rape and pillage....not exactly those words--but you get the idea anyway.

I would prefer to place my security and safety in the hands of my God, and in my hands--I don't want my security and safety trusted to someone who has no stake invested in my safety and who quite frankly could care less if the next breath I take is my last. No one can protect me better than God, myself and my brothers.

WCrawford · Oct 11, 2008

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suntzu wrote:

So we become like the Israelis? The Israelis do this exact thing--posting armed guards in facilities, metal detectors--so you would be content with surrendering your rights for the sake of businesses--and governments feeling "secure"--but secure from whom? From us? From the people? If business(es) and governments were allowed to limit the places you can carry--which they are trying to do--who exactly are they trying to protect themselves from? I say it again--criminals are NOT going to respect "no firearms laws"--and metal detectors? I would not want to live in a society that had metal detectors at the entrance of every building I went into--makes me think of Orwell's 1984.

you mentioned holding the business owners criminally and financially responsible for the safety of employees and patrons--if I am a patron and someone comes in shooting up the place--what good does the money do if I become a casualty simply because the people gave up their rights in order to make the government/business owners feel safer from us citizens? Who is the enemy here--the citizens or the criminals who will never obey the laws regardless of how many you pass? If you need an example--look at Virginia Tech...."no firearms on campus" did those students so much good. When the shooting started at Virginia Tech--where was security? That is something else that should be changed in the state laws here--students who are 21 should be allowed to carry on college campuses in the state of Tennessee, openly and concealed.

Someone once posted a sign on here I think-- that I just loved--it basically said--firearms prohibited, criminals and thugs feel free to rape and pillage....not exactly those words--but you get the idea anyway.

I would prefer to place my security and safety in the hands of my God, and in my hands--I don't want my security and safety trusted to someone who has no stake invested in my safety and who quite frankly could care less if the next breath I take is my last. No one can protect me better than God, myself and my brothers.

I totally understand your points, and I agree. I only want those things in legislation so that we could carry in all places. Very few businesses will spend the money to be a "gun free zone" if they were required to provide armed guards, gun lockers, and metal detectors. Add in being financially and criminally responsible for those in their place of business and the costs will totally outweigh any percieved benifits.

suntzu · Oct 11, 2008

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WCrawford wrote:

suntzu wrote:

So we become like the Israelis? The Israelis do this exact thing--posting armed guards in facilities, metal detectors--so you would be content with surrendering your rights for the sake of businesses--and governments feeling "secure"--but secure from whom? From us? From the people? If business(es) and governments were allowed to limit the places you can carry--which they are trying to do--who exactly are they trying to protect themselves from? I say it again--criminals are NOT going to respect "no firearms laws"--and metal detectors? I would not want to live in a society that had metal detectors at the entrance of every building I went into--makes me think of Orwell's 1984.

you mentioned holding the business owners criminally and financially responsible for the safety of employees and patrons--if I am a patron and someone comes in shooting up the place--what good does the money do if I become a casualty simply because the people gave up their rights in order to make the government/business owners feel safer from us citizens? Who is the enemy here--the citizens or the criminals who will never obey the laws regardless of how many you pass? If you need an example--look at Virginia Tech...."no firearms on campus" did those students so much good. When the shooting started at Virginia Tech--where was security? That is something else that should be changed in the state laws here--students who are 21 should be allowed to carry on college campuses in the state of Tennessee, openly and concealed.

Someone once posted a sign on here I think-- that I just loved--it basically said--firearms prohibited, criminals and thugs feel free to rape and pillage....not exactly those words--but you get the idea anyway.

I would prefer to place my security and safety in the hands of my God, and in my hands--I don't want my security and safety trusted to someone who has no stake invested in my safety and who quite frankly could care less if the next breath I take is my last. No one can protect me better than God, myself and my brothers.

Click to expand...

I totally understand your points, and I agree. I only want those things in legislation so that we could carry in all places. Very few businesses will spend the money to be a "gun free zone" if they were required to provide armed guards, gun lockers, and metal detectors. Add in being financially and criminally responsible for those in their place of business and the costs will totally outweigh any percieved benifits.

The problem is--if you present an opening to the gun grabbers in society--they will jump on it...If I could have my personal way--it would be a law that every citizen who could legally carry a gun under state law--would have to carry and actually receive annual or semi-annual training in its use...and I mean situations such as shoot/no shoot scenarios....and I mean everyone from the Sunday preacher who stands behind the pullpit to the little lady who stands next to you in line at the local grocer--to the doctor...and then make it next to impossible to prohibit firearms in public places such as grocers and so on....unless you are willing to prohibit leos as well...

of course some would say this is taking it a bit overboard--but if you are in it--you should be in it to win...

some serious questions for open carriers in the state

suntzu

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Task Force 16

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Fallguy

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WCrawford

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SlackwareRobert

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fullauto223cal

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suntzu

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Fallguy

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