Going to Tenn for vacation, questiosn.

I was really just asking in your own personal experience at the airport.

However I've never been able to find or even heard of a person being charged with 39-17-1359 either. Neither has anyone on another gun forum I'm on...that is one reason I perused this a bit more with you. I think one reason we are having trouble finding any cases are in the end most private business post because they don't want firearms on their property, so if the person agrees to leave (assuming they entered in the first place), I figure most times that's the end of it.

If a person has a HCP and is only violating 1359 the main reason I don't think 1307 applies is because 1308(a)(2) clearly says having a HCP is a defense to the application of 1307. Just as several other circumstance/people are in other parts of 1308.

AFAIK I'm not coming to the airport anytime soon, but when/if I do and your on duty, first cup of coffee is on me.

Now that you mention it, I've never seen anyone charged specifically with 1359 either. When I type that code into Westlaw, no cases come up. Next time I'm downtown, I will also look in our affidavit/warrant templates to see if there's one listed for 1359. As far as personal experience, I'm not familiar with any of our officers specifically using 1307 when we have caught someone carrying in the airport away from the checkpoint. With that said, I think that's the only applicable charge to use at the checkpoint as well. Although there are federal charges for carrying at a federal checkpoint, I can't think of another local charge we would use related to weapons. We could also use the airport/aircraft security charge, but that's a catch all charge to anyone that attempts to gain access to the sterile area of an airport without proper screening. You're right that having a HCP is a defense to 1307, but it's an affirmative defense, meaning that it's on the burden of the HCP holder to show to the court they were not violating 1307. I think if they're carrying in a building where there are big red signs (conforming with 1359 ), they're going to be fighting an uphill battle saying that they were carrying in compliance/lawfully.

Either way, it would make for some good arguments. I would like to be involved in case where these issues are addressed. I'll keep digging.

When you have caught someone with a HCP carrying in the airport away from the checkpoint, what have you charged them with?

I don't see the word "affirmative" anywhere in 1308. 1310 list defenses to 1309 and says they are affirmative defenses to prosecution. So since affirmative is left out of 1308, I don't think that is the case that they are affirmative defenses. 1308 says the list of defense in it are a defense to the application of 1307. To me that means if you meet one of those defenses 1307 does not apply. Such as if the weapon is unloaded, you are on your own property, you are an out of state LEO and so on. What you have to show is that weapon is unloaded, you are on your own property, you are an out state LEO or that you have a HCP, then that means 1307 does not apply.

If you are carrying in a building with a big red sign that conforms to 1359 I agree you are not carrying lawfully...You are violating 1359, but that is all you are violating and that is what applies.

I look forward to hearing any information you can find.

To me that means if you meet one of those defenses 1307 does not apply.

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Just because you have a defense to 1307 listed under 1308 (by having a HCP) doesn't mean it's going to be a successful one. It's definitely an argument on your side that you will let the DA know you're going to present. If I charge you with 1307 inside the terminal building (or any building with a 1359 posting), just because you have a HCP pursuant to a 1308 defense doesn't mean it's an automatic win. The prosecution will argue the fact that your HCP isn't valid in a facility where it's prohibited pursuant to 1359, which is why you're no longer lawfully carrying the weapon and 1307 would apply. At least that's how I would argue it.

For some reason I thought it was an affirmative defense. After looking through 1307/1308 I don't see it either. I thought it was off the top of my head, which is what I get for posting it without verifying.

If you are carrying in a building with a big red sign that conforms to 1359 I agree you are not carrying lawfully...You are violating 1359, but that is all you are violating and that is what applies.

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Here is where you and I can agree to disagree. I believe any time you are carrying unlawfully in this state, you can be charged with 1307. The text of the statute reads "unlawful carry w/intent to go armed." You are not carrying lawfully if you are violating the 1359 posting by carrying where it's prohibited. I agree that 1359 would be the more appropriate charge, but I have yet to verify that it's even a criminal offense that is used for those who carry where it's posted. Since it says it's a B misdemeanor and punishable by fine only, you would think it is, but I'm concerned with the fact that there is not one case listed on Westlaw involving 1359.

So you are saying someone with a firearm on their own property could be charged with a violation of 1307 and they would have to go to court and prove they were on their own property? Or that someone on the way to the firing range with an unloaded weapon and no ammo (going to buy it at the range) could be charged and have to go to court and prove it was unloaded. I guess technically that may be true (there is the old saying you may beat the charge, but you can't beat the ride), but I'd sure hate to be the officer that presented the charges knowing the people have a valid defense per 1308.

If you charge someone with a valid permit with a violation of 1307 because they are in a place posted per 1359 I bet you that cup of coffee you'll loose. If you charge them with 1359 you'd probably win.

Why aren't people that unlawfully carry per 1306, 1309, 1311 charged with 1307 instead of 1306, 1309 or 1311?
You may find cases where they were also charged with 1307, but I bet none of those people had a HCP. If they had a HCP and were only violating 1306, 1309 or 1311 I'd bet 1306, 1309 or 1311 is all they were charged with and 1307 also.

Just because no one has ever been charged with a law, doesn't mean it isn't a valid charge.

Sounds like you have contact with a DA. Ask them if 1359 is a criminal charge in-and-of-itself. Also ask them if someone has a valid HCP and is in a place with a 1359 posting, but otherwise acting lawfully if they would be charged with 1359 or 1307.

So you are saying someone with a firearm on their own property could be charged with a violation of 1307 and they would have to go to court and prove they were on their own property? Or that someone on the way to the firing range with an unloaded weapon and no ammo (going to buy it at the range) could be charged and have to go to court and prove it was unloaded. I guess technically that may be true (there is the old saying you may beat the charge, but you can't beat the ride), but I'd sure hate to be the officer that presented the charges knowing the people have a valid defense per 1308.

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I'm not saying that at all. I'm saying that 1308 simply lists a defense to being charged with 1307. I'm sure the ADA knows the defenses and would read the police/arrest report to see if it needed to be pursued further. I don't see any officer arresting a HCP holder in those circumstances. I'm merely stating that just because it's listed as a defense doesn't mean the person can't still be arrested under 1307 if some other circumstances existed that warranted the officer to arrest.

If you charge someone with a valid permit with a violation of 1307 because they are in a place posted per 1359 I bet you that cup of coffee you'll loose. If you charge them with 1359 you'd probably win.

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Possibly, but Im willing to wager that cup of coffee. That's what anyone, including HCP holders, are charged with every month in the airport terminal. I don't see it being any different at the checkpoint than anywhere else other than federal charges/fines can be applied. Unless the ADA is amending the charge prior to the preliminary hearing to a 1359 violation, it appears 1307 is applicable.

Why aren't people that unlawfully carry per 1306, 1309, 1311 charged with 1307 instead of 1306, 1309 or 1311?

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Because the wording is more specific involving those violations. Technically I don't see why an officer couldn't use 1307 in any of those circumstances either. The point is 1307 is a general weapons offense that refers to anyone that is "unlawfully" carrying a firearm (or club/knife) w/the intent to go armed. Obviously the firearm carry on school grounds is a higher penalty (felony) so that's why it has its own statute. The legislature could eliminate the school statute and add it under 1307, with the additional language that violating under section "e" (for school grounds) would be a felony. It could be put in the TCA anyway the state folks feel it should read. There used to be a separate offense for child endangerment involving a DUI, but they eliminated it and added it to the DUI statute with additional section to include the enhanced penalty.

Sounds like you have contact with a DA. Ask them if 1359 is a criminal charge in-and-of-itself. Also ask them if someone has a valid HCP and is in a place with a 1359 posting, but otherwise acting lawfully if they would be charged with 1359 or 1307.

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Will do.

My last visit to Nashville here's the sign that was posted. A far cry from Seattle where we can OC or CC.

I look forward to hearing what the DA has to say. Make sure when you ask that we are talking about a generic property posted per 1359 and the security checkpoint at the airport.

I think it was said in one post that 1307 has not been used to charge HCP holders away from the check point. That is my main concern.

I agree it is illegal to have a firearm at the checkpoint regardless of a HCP or not and really regardless of the airport being posted per 1359. If the feds aren't going to pursue charges and leave it up the Airport Police instead, I agree 1307 is really the only state charge that would be applicable.

But if an armed HCP holder was standing at the baggage pickup waiting with someone that just landed....then I think only 1359 applies. (I know this is where we disagree)

To me it is clear that 1359 is a charge as it is laid in in subsection (c). (c)(1) clearly says a violation of "this section" is a Class B misdemeanor and (c)(2) lays out what the punishment is.

1307 is not a section to reference back to when one carries unlawfully...1307 is the section that makes it unlawfully to carry. It makes the whole state a no-carry zone. Having a permit issued per 1351 makes 1307 not applicable per 1308.

Fallguy said:

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But if an armed HCP holder was standing at the baggage pickup waiting with someone that just landed....then I think only 1359 applies. (I know this is where we disagree)

To me it is clear that 1359 is a charge as it is laid in in subsection (c). (c)(1) clearly says a violation of "this section" is a Class B misdemeanor and (c)(2) lays out what the punishment is.

1307 is not a section to reference back to when one carries unlawfully...1307 is the section that makes it unlawfully to carry. It makes the whole state a no-carry zone. Having a permit issued per 1351 makes 1307 not applicable per 1308.

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That seems the clearest interpretation to me ... and would seem that any still wet behind the ears mouthpiece could successfully defend a client with it, too.

- OS

Oh Shoot said:

That seems the clearest interpretation to me ... and would seem that any still wet behind the ears mouthpiece could successfully defend a client with it, too.

- OS

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Defend what exactly? Have their client convicted of a B misdemeanor instead of an A misdemeanor where a monetary fine and likely forfeiture of the weapon would still occur? I don't see this as a "win" situation. Although I think this is a healthy discussion that I hope to get clarity on from the ADA soon, it's still an arrest and conviction either way if a HCP holder comes into a building where 1359 signage is posted.

SgtScott31 said:

Defend what exactly? Have their client convicted of a B misdemeanor instead of an A misdemeanor where a monetary fine and likely forfeiture of the weapon would still occur? I don't see this as a "win" situation. Although I think this is a healthy discussion that I hope to get clarity on from the ADA soon, it's still an arrest and conviction either way if a HCP holder comes into a building where 1359 signage is posted.

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He may have meant that it would be easy to defend a 1307 charge against a 1359 only violation.

$500 fine better than the possibility of 11 months 29 days in jail.

Also just because the weapon may be seized doesn't mean it might not be returned after court, even after a conviction. I mean they don't take your care for a speeding ticket....

Also just because the weapon may be seized doesn't mean it might not be returned after court, even after a conviction.

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True, but in my experience it has been very rare.

SgtScott31 said:

True, but in my experience it has been very rare.

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Well I can't argue with that....

SgtScott31 said:

Defend what exactly? Have their client convicted of a B misdemeanor instead of an A misdemeanor where a monetary fine and likely forfeiture of the weapon would still occur? I don't see this as a "win" situation. Although I think this is a healthy discussion that I hope to get clarity on from the ADA soon, it's still an arrest and conviction either way if a HCP holder comes into a building where 1359 signage is posted.

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Besides the much harsher fine and possible jail time of a Class A 'meanor, you automatically lose your HCP for a Class A for duration of sentence, including any parole.

(there is another part of TCA statutes that says you lose your permit for a 1359 violation, which seems at loggerheads with "$500 fine only", but apparently that has not been tested, as we still can find no actual documentation of a 1359 conviction, or TNDOS aftermath regarding permit). But that's probably another discussion.

As far as confiscation of weapon, I don't understand how it is legal for the state to keep it, convicted or not?

- OS

Besides the much harsher fine and possible jail time of a Class A 'meanor, you automatically lose your HCP for a Class A for duration of sentence, including any parole.

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The biggest threat is probably a larger fine. I highly doubt the ADA is going to try to impose the full sanctions of a class A misdemeanor on a 1359/1307 violation. Since misdemeanors carry no more than 11 mos 29 days in jail, they're likely to be on probation, not parole.

As far as confiscation of weapon, I don't understand how it is legal for the state to keep it, convicted or not?

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Anytime there is a weapon-related arrest, the police seize the weapon. On quite a few occasions, the ADA will ask the holder to forfeit the weapon as part of the plea agreement. Even if they refuse to forfeit, it's hard to get it back. If it's part of the offense you're arrested for, you're going to be fighting an uphill battle.

I have submitted questions to one of the DAs and hope to get a response within the week. I'm not against HCP holders and understand that mistakes happen, but it is hard for me to swallow that people don't know where their firearms are until they walk through a federal checkpoint. I have two guns, one for on-duty use (issued) and an off-duty (personal) weapon. I know where they are 24/7. Although we don't have much discretion inside the main terminal, if a local charge with a fine only and no jail time is possible and I absolutely have to charge a valid permit holder with something (especially if it was accidental), I would rather it be the lesser offense. The HCP holder is going to have to deal with the feds if the weapon is discovered during screening, which is far more costly.

I too have found it a bit hard to swallow when some have said they forgot it was in there. I guess it is possible, but even if true doesn't' show much responsibility.

SgtScott31 said:

The biggest threat is probably a larger fine. I highly doubt the ADA is going to try to impose the full sanctions of a class A misdemeanor on a 1359/1307 violation. Since misdemeanors carry no more than 11 mos 29 days in jail, they're likely to be on probation, not parole.
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I misspoke, meant probation, not parole, which is something you get only after serving some time. As I understand it, probation period is part of the sentence, and you lose your permit for the duration of it.

- OS

Just an update, the ADA is looking into 1359 vs 1307. He did mention in the first email that (in his opinion) 1307 is preferred in our location due to unlawful carry in a place where there is a significant amount of people (higher misdm). He advised it's been a busy week so he'll try to give me a better answer next week.

Look forward to it.

Townsend/Cades Cove

This is a very informative and professional thread. Thanks Sgt. Scott for your follow-ups.

I just returned from vacation in this area. Just an advance FYI to other visitors, the park camp store and office of the horse stables are both posted. I saw no postings in the stores or restaurants in town.