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OCer arrested in Smyrna TN

Ken56

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Oct 29, 2010
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368
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Dandridge, TN
Has anyone else noticed the absence of anyone from TN responding here? See our problem then? It seems that most good folks of TN are fine with the somewhat messed up laws we have on this subject. I originally came from MI. and was used to a lot more OC freedom than what I moved to here in TN. Its not perfect here but for the most part OC is accepted and the LEO are pretty good with knowing the law. My question on this concerns the issue of having the permit in your possession at all times when armed and shall display it upon request to a LEO. To me that does not mean I hand it over to them, I just let them see it and retain possession. I have OCed all over my little town and out around the area and have never had an encounter with LE. They have seen me yes, and don't bat an eye. I would love to have a more vocal movement concerning changing the unconstitutional restrictions we have here in TN. Alas, I admit to not doing enough myself. I just OC all over town and I have never seen anyone else do it around here.
 

JustaShooter

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NE Ohio
Fixed it for you.
Fixed incorrectly, as I understand TN law. In TN, it is a crime to carry a firearm. See http://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1307/

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.

A valid handgun carry permit is a *defense* to the crime of Unlawful carrying or possession of a weapon. See http://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1308/

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;
(39-17-1351 being the section of TN law that provides for handgun carry permits. See http://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1351)

Give that, a LEO seeing an individual carrying a firearm would have RAS of an illegal act and be able to initiate a stop, and it is then up to the individual to show one of the defenses to the crime, such as a valid handgun carry permit.
 

stealthyeliminator

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Texas
A good question and it shows you're paying attention.
The answer is that in Tennessee it's not a crime to operate a vehicle and that having a license is a defense. The way the law reads is that one must have a license to legally operate a vehicle on roads. To have RAS one would have to reasonably suspect that a person was unlicensed (being obviously under-aged, waving a white cane out the window, would both be perfect reasons to detain a motorist on mere sight of one driving.) Absent that, a motorist must be assumed to be licensed as there is no indication that he does not possess a license.


The firearms law, on the other hand, makes it an illegal act to go about with the intent to be armed and an officer's knowledge that someone is armed presents a reasonable suspicion that someone is performing the aforementioned illegal act. At that point it is up to the citizen to present an affirmative defense. (The citizen doesn't have to of course, but it's not up to the officer to investigate every exception when he already has PC.



To reduce it no near absurdity - -
Carrying firearm is illegal
Officer having knowledge of firearm gives RAS of illegal act unless the citizen has a defense against the charge.

Driving without a license is illegal
Officer cannot suspect by mere sight, smell, hearing, touch, or taste that a driver does not have a license, so no RAS is present.
Fixed incorrectly, as I understand TN law. In TN, it is a crime to carry a firearm. See http://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1307/




A valid handgun carry permit is a *defense* to the crime of Unlawful carrying or possession of a weapon. See http://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1308/



(39-17-1351 being the section of TN law that provides for handgun carry permits. See http://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-13/39-17-1351)

Give that, a LEO seeing an individual carrying a firearm would have RAS of an illegal act and be able to initiate a stop, and it is then up to the individual to show one of the defenses to the crime, such as a valid handgun carry permit.
Let me again fix this correctly for you.

If what you believe is true, then
"Carrying firearm is illegal
Officer having knowledge of firearm gives [strike]RAS[/strike] PC of illegal act. Period. [strike]unless the citizen has a defense against the charge.[/strike]" Either the officer must rule out the exception, or he doesn't. If he doesn't need to rule out the exception, he doesn't need to afford you the opportunity to prove your innocence either. Save it for the judge, he might tell you.

"and it is then up to the individual to be arrested, go to jail, and then in court, to the judge show one of the defenses to the crime"

The cop is not the judge - as we are so often reminded when told not to argue with them on the roadside. Or do you believe they have any duty to see your defense, or afford you the opportunity to make one? No, they either have the PC or they don't. If they do, you could have your permit at the ready or tacked to your chest on full display and it would be irrelevant, they could make their arrest anyway. Your interpretation means that in effect there is no OC in TN, even with a license, except perhaps by the grace or laziness of the individual officers you encounter.
 

Fallschirjmäger

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Fallschirmjäger said:
Carrying firearm [without a license] is illegal...
Fixed it for you.
Actually, No, you didn't.
The text of TN Code 39-17-1307 reads in part;
"(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. "​
If you will note there is no "without a license" in that section. It does not exist in that section. It is illegal per 39-17-1305 to go about armed. An officer having knowledge of someone going about armed has ample justification to make a detainment to investigate a prima facie violation of TN law. Period. Full Stop. End. Fin.

However, 39-17-1308, provides a defense against the charge which reads in part;
(a) It is a defense to the application of § 39-17-1307 if the possession or carrying was:
(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315 or § 39-17-1351;
"39-17-1307. Unlawful carrying or possession of a weapon.
A carrier can either present his license to the nice officer at which point the officer no longer has any RAS to suspect an illegal act, or he can produce proof at court. Me? I'd rather not spend any more time nodding off in a stuffy courtroom than necessary.
 
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solus

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Aug 22, 2013
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here nc
I have plenty, just no more troll food for you. Sorry to disappoint.
Fixed it for you.
Fixed incorrectly, snipped...
Let me again fix this correctly for you. snipped...
Actually, No, you didn't. snipped...
TXOC16, I certainly hope you appreciate the real world & life lesson from the lady called ~ karma.

once again, TXOC16, you have revealed more about your character to the forum's membership then i imagine you wished to...

enjoy your stay...

ipse
 

TXOC16

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...you have revealed more about your character to the forum's membership then i imagine you wished to.
At least I have a character, "mate" (not to mention nearly impeccable grammar, punctuation, and spelling).
 

stealthyeliminator

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Texas
I wouldn't know since I'm not a lawyer, but it might be worth noting that exceptions and defenses and affirmative defenses are described in 39-11-202, 39-11-203, and 39-11-204. The language in 39-17-1308 doesn't seem conform to any of the three but actually looks like a bastardization of two of them. So, it is not any of the three? Or if one of them, which, since the language doesn't conform to the definition in any? And if none of them, then what is 39-17-1308, and what effect does it have?

Seems like the guys in Tennessee need to really press their legislature to clean up this mess so that it makes more sense and the intent is clear. And don't forget to mention, while they're at it, go ahead and make it constitutionally-compliant. ;) ETA: I don't mean this negatively toward anyone in TN - the state of TX law can be pretty nonsensical as well. Working on it...

I also wonder if 39-11-111 makes refusing a misdemeanor offense. I can't tell. I do know this section made me laugh out loud. "the doing of the act is a misdemeanor." LOL come on now, who thought that'd really be a good way to phrase this? Is this the legislature's sense of humor shining through?
 
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davidmcbeth

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Actually, No, you didn't.
The text of TN Code 39-17-1307 reads in part;
"(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. "​
If you will note there is no "without a license" in that section. It does not exist in that section. It is illegal per 39-17-1305 to go about armed. An officer having knowledge of someone going about armed has ample justification to make a detainment to investigate a prima facie violation of TN law. Period. Full Stop. End. Fin.

However, 39-17-1308, provides a defense against the charge which reads in part;
(a) It is a defense to the application of § 39-17-1307 if the possession or carrying was:
(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315 or § 39-17-1351;
"39-17-1307. Unlawful carrying or possession of a weapon.
A carrier can either present his license to the nice officer at which point the officer no longer has any RAS to suspect an illegal act, or he can produce proof at court. Me? I'd rather not spend any more time nodding off in a stuffy courtroom than necessary.
Well, perhaps that they can argue this but you cannot do a 4th amendment run-a-round like that. A good catch on the reading.

Of course, the way you read it (which is one way of reading it) everyone could be arrested as such a defense is an affirmative defense that must be plead in court, not on the street. Is this the intent of the legislature? To allow carriers to be arrested on sight and have the issues resolved later?

There is no requirement for a cop to demand to see your permit. So all a cop has to do is see you and arrest you. See you in court?

See the issue with the reading that they may argue? The statue was not written in a vacuum.
 

WalkingWolf

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In NC statutes clearly make carrying a concealed weapon a criminal offense, and lays out exceptions(defense). Yet the 4th district federal court has ruled in US V Black that OC IS NOT RAS of a crime. This has also been ruled on in Deberry v Illinois.

It is either legal or illegal to carry a handgun in Tn with a license. The idea that a person is committing a crime until they prove they are not committing a crime goes against the 4th amendment.

But I still believe that a person should comply with protest, it is just not worth getting shot over.
 

Fallschirjmäger

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Well, perhaps that they can argue this but you cannot do a 4th amendment run-a-round like that. A good catch on the reading.

Of course, the way you read it (which is one way of reading it) everyone could be arrested as such a defense is an affirmative defense that must be plead in court, not on the street. Is this the intent of the legislature? To allow carriers to be arrested on sight and have the issues resolved later?

There is no requirement for a cop to demand to see your permit. So all a cop has to do is see you and arrest you. See you in court?

See the issue with the reading that they may argue? The statue was not written in a vacuum.
Have you noticed a glut of court cases where firearms carriers were arrested and forced to prove they were covered by 1308 that I somehow missed?

Have you noticed any instances, say a YouTube video perhaps, where an officer has asked to see a license to ensure someone he has knowledge of carrying a firearm is compliant with the law?
I'm sure I can find a video of the second, if I really look. There might even be one in this thread.....
 

davidmcbeth

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Have you noticed a glut of court cases where firearms carriers were arrested and forced to prove they were covered by 1308 that I somehow missed?

Have you noticed any instances, say a YouTube video perhaps, where an officer has asked to see a license to ensure someone he has knowledge of carrying a firearm is compliant with the law?
I'm sure I can find a video of the second, if I really look. There might even be one in this thread.....
I'm missing any point you are trying to make. Asking me for any search results of these things? I don't have any but I have searched either.
 

TXOC16

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LOl. One is either impeccable and impregnable, or one is peccable and pregnible, there is no almost perfect.
You’re kidding, right? Your lesson for the day is that there’s no such thing as nearly perfect (as in approaching, nearing, or close to perfection), and that there’s no such thing as nearly impregnable (as in approaching, nearing, or close to impregnability), and that there’s no such thing as nearly impeccable (as in approaching, nearing, or close to impeccability)?

LOL, indeed.
 

Fallschirjmäger

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In NC statutes clearly make carrying a concealed weapon a criminal offense, and lays out exceptions(defense). Yet the 4th district federal court has ruled in US V Black that OC IS NOT RAS of a crime. This has also been ruled on in Deberry v Illinois.
WW, I don't think that's quite what the NC statute says on the matter (if you're referring to § 14-415.11.) Could you post a link where it says carrying concealed is a criminal offense?
 

WalkingWolf

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WW, I don't think that's quite what the NC statute says on the matter (if you're referring to § 14-415.11.) Could you post a link where it says carrying concealed is a criminal offense?
14-269. Carrying concealed weapons.

(a) It shall be unlawful for any person willfully and intentionally to carry concealed about his or her person any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shuriken, stun gun, or other deadly weapon of like kind, except when the person is on the person's own premises.
 
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