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OCer arrested in Smyrna TN

Nascar24Glock

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Absent evidence that a crime has been committed, is being committing, or is about to be committed, the mere act of a citizen participating in what is an otherwise lawful activity does not and cannot serve as a basis for reasonable suspicion.

For example, I'm sure that each TN municipality, indeed, the state itself, have laws that prohibit the operation of a motor vehicle upon public roads without a valid drivers license, yet absent the aforementioned evidence to the contrary, the presumption must always be one of innocence, rather than guilt, which prevents law enforcement from stopping motor vehicle operators merely to check for a valid license.
That's what you're missing. In Tennessee, subject to limited exceptions (possession in a car, for example), possession of a firearm is a crime under T.C.A. 39-17-1307. PERIOD. It simply is a crime. T.C.A. 39-17-1308 then has a list of defenses, which includes possession in one's home and possession in public of a handgun with a carry permit. However, keep in mind that a defense works differently than an exception in that it shifts the burden of proof. In the case of an exception, the officer must have PC of the crime itself and that no exceptions may exist. When a defense is involved, however, the cop has PC and can either accept a defense given or arrest the person and direct the person to raise that defense to a judge/jury.

As such, because of the way Tennessee law is currently written, the following could in theory happen. A sheriff could direct his officers to arrest every handgun carrier he comes across; and the prosecutor could take it to trial and make the permit holder raise the permit defense by showing their permit to the jury. Similarly, if an officer learns of a gun in someone's home, he could swear out a warrant under T.C.A. 39-17-1307 and arrest the person in possession of a gun in their own home. And then the prosecutor could take it to trial and make the person raise the "possession in the home" defense by showing their house deed to the jury. Again, I'll emphasize that possession of a gun in one's home in Tennessee is technically a crime; and being able to demonstrate that it is in the person's home is a defense to the charge, not an exception, which allows the prosecutor to force it to a trial if he/she really wanted to. Then, in either case, once they're acquitted, the sheriff could direct an officer to follow that person to the evidence room where they'll pick up their confiscated firearm. And once they sign out for it, the officer could then arrest them again for "possession of a firearm under T.C.A. 39-17-1307"; and the prosecutor could take it to trial and make then raise the "possession of an unloaded gun for transportation purposes" defense. And once that trial was over, they could continue that in an endless loop. In essence, if a Tennessee sheriff and prosecutor just really wanted to be absolute tyrants, they could in theory under current Tennessee laws harass gun owners to the point of effectively banning firearm ownership in their county.

Fortunately, I'm not aware of any county doing something that stupid (if they did, it would probably get thrown out as unconstitutional and likely get a good portion of the rest of the statute thrown out with it). But they could in theory do that. And that's why the law needs to be changed to where those defenses are exceptions. Doing that would make it similar to the other states and require more than just possession of the firearm to create probable cause. Quite ironically, possession of a firearm in a private motor vehicle currently enjoys greater protection under Tennessee law than possession of a firearm in one's home since possession in a car is an exception but possession in the home is a defense.
 
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WalkingWolf

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That's what you're missing. In Tennessee, subject to limited exceptions (possession in a car, for example), possession of a firearm is a crime under T.C.A. 39-17-1307. PERIOD. It simply is a crime. T.C.A. 39-17-1308 then has a list of defenses, which includes possession in one's home and possession in public of a handgun with a carry permit. However, keep in mind that a defense works differently than an exception in that it shifts the burden of proof. In the case of an exception, the officer must have PC of the crime itself and that no exceptions may exist. When a defense is involved, however, the cop has PC and can either accept a defense given or arrest the person and direct the person to raise that defense to a judge/jury.

As such, because of the way Tennessee law is currently written, the following could in theory happen. A sheriff could direct his officers to arrest every handgun carrier he comes across; and the prosecutor could take it to trial and make the permit holder raise the permit defense by showing their permit to the jury. Similarly, if an officer learns of a gun in someone's home, he could swear out a warrant under T.C.A. 39-17-1307 and arrest the person in possession of a gun in their own home. And then the prosecutor could take it to trial and make the person raise the "possession in the home" defense by showing their house deed to the jury. Again, I'll emphasize that possession of a gun in one's home in Tennessee is technically a crime; and being able to demonstrate that it is in the person's home is a defense to the charge, not an exception, which allows the prosecutor to force it to a trial if he/she really wanted to. Then, in either case, once they're acquitted, the sheriff could direct an officer to follow that person to the evidence room where they'll pick up their confiscated firearm. And once they sign out for it, the officer could then arrest them again for "possession of a firearm under T.C.A. 39-17-1307"; and the prosecutor could take it to trial and make then raise the "possession of an unloaded gun for transportation purposes" defense. And once that trial was over, they could continue that in an endless loop. In essence, if a Tennessee sheriff and prosecutor just really wanted to be absolute tyrants, they could in theory under current Tennessee laws harass gun owners to the point of effectively banning firearm ownership in their county.

Fortunately, I'm not aware of any county doing something that stupid (if they did, it would probably get thrown out as unconstitutional and likely get a good portion of the rest of the statute thrown out with it). But they could in theory do that. And that's why the law needs to be changed to where those defenses are exceptions. Doing that would make it similar to the other states and require more than just possession of the firearm to create probable cause. Quite ironically, possession of a firearm in a private motor vehicle currently enjoys greater protection under Tennessee law than possession of a firearm in one's home since possession in a car is an exception but possession in the home is a defense.
Then Tn does not have legal open, or conceal carry. A citizen is just taking their chances by carrying, their status and an OC state needs to be changed. But if they are like most states that have laws making carry illegal like NC, but exceptions excusing the law the implication by the courts in most states that the person is legal, unless there is RAS of a crime.
 

davidmcbeth

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That's what you're missing. In Tennessee, subject to limited exceptions (possession in a car, for example), possession of a firearm is a crime under T.C.A. 39-17-1307. PERIOD. It simply is a crime. T.C.A. 39-17-1308 then has a list of defenses, which includes possession in one's home and possession in public of a handgun with a carry permit. However, keep in mind that a defense works differently than an exception in that it shifts the burden of proof. In the case of an exception, the officer must have PC of the crime itself and that no exceptions may exist. <snip>
I would disagree. Exemptions and exceptions are always needed to be proven and/or plead by the party that the exemptions/exceptions favor.

Exemptions are permissible. Meaning that the beneficiary does not have to take the exemption's benefits if the person does not want to.

Exceptions are mandatory and not permissible.

How to tell the difference? Simple. Not claiming an exception will result in some type of penalty being assessed against the person who does not plead/claim it. Exemptions have no such penalty associated with not claiming it as its permissible in nature anyway.
 

stealthyeliminator

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Then Tn does not have legal open, or conceal carry.
I think this is what it boils down to. They want their cake and to eat it too. They "passed OC" but gave LEO "limitless" power to harass or arrest - so really they just don't actually have OC. It's either legal, in which case a person shouldn't be subject to seizure or "ID checks," or it's not, in which case they shouldn't be claiming or pretending to have legal carry. Legislature needs to fix this mess. It's shameful. Downright shameful. And OCers, rather than dumping criticism on people like in this video, should be banging (figuratively!) on the doors of their representatives demanding (politely!) they clean up this shameful mess they've created.
 

Nascar24Glock

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Then Tn does not have legal open, or conceal carry. A citizen is just taking their chances by carrying, their status and an OC state needs to be changed. But if they are like most states that have laws making carry illegal like NC, but exceptions excusing the law the implication by the courts in most states that the person is legal, unless there is RAS of a crime.
Keep in mind, I'm just stating what could theoretically happen. In practice, it is legal. I'm not aware of any county or city that is harassing anyone to this extent (except maybe demanding to see the person's permit each time). In theory, OC (or even possession of a firearm in the home) is still overall "legal", but only to the extent a person is willing to go to court, incur the burden of proving the applicable defense, and in general put up with some harassment if a cop and prosecutor just really want to be a tyrant about it.
 
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deepdiver

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*shrug* I traveled through TN a few times last week and as always before travel, reviewed CC & OC statutes for where I would be. I thought TN statute was pretty clear that if I OC that is PC for cop to ask for CC license and I was prepared to be asked and present it. Didn't come up but didn't see any room to do otherwise if it had.

LT in video was pretty straight forward and calm with the choices. I agree with several others commenting and think the cops were right under TN law.
 

WalkingWolf

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Keep in mind, I'm just stating what could theoretically happen. In practice, it is legal. I'm not aware of any county or city that is harassing anyone to this extent (except maybe demanding to see the person's permit each time). In theory, OC (or even possession of a firearm in the home) is still overall "legal", but only to the extent a person is willing to go to court, incur the burden of proving the applicable defense, and in general put up with some harassment if a cop and prosecutor just really want to be a tyrant about it.
No it is not legal, as you have pointed out yourself. If it was legal police could not stop, and demand papers. Tn is a state that should be avoided by people who carry handguns.
 

davidmcbeth

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No it is not legal, as you have pointed out yourself. If it was legal police could not stop, and demand papers. Tn is a state that should be avoided by people who carry handguns.
Or the po po of TN should avoid carriers? Run into people who know the 4th amendment...
 

Fallschirjmäger

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... As such, because of the way Tennessee law is currently written, the following could in theory happen. A sheriff could direct his officers to arrest every handgun carrier he comes across; and the prosecutor could take it to trial and make the permit holder raise the permit defense by showing their permit to the jury. Similarly, if an officer learns of a gun in someone's home, he could swear out a warrant under T.C.A. 39-17-1307 and arrest the person in possession of a gun in their own home. And then the prosecutor could take it to trial and make the person raise the "possession in the home" defense by showing their house deed to the jury.
Funny thing and it ties in with your hypothesis....
Because of the way T.C.A. 39-17-1307 is written it applies to everyone, not just the unwashed hoi polloi. It's also illegal for TN police officers to go about armed and 39-17-1315 is the defense.

As for a -1307 arrest going to trial, I wouldn't even hire a lawyer. Just show a license and -1307 is no longer applicable. Yea, the county just wasted time and money on something easily disproved and I've lost a few hours of my time.

And no, the prosecutor count not raise a "possession in the home" theory of the case as the TCA reads
(a) It is a defense to the application of § 39-17-1307 if the possession or carrying was:
(3) At the person's:
 
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stealthyeliminator

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I'm not a lawyer, but, I don't see how the defense for possession in the home is different than the defense for possession in public with a permit. The "defense" for possession in one's own home is made in the same manner as the "defense" for having a permit.

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:
...
(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315 or § 39-17-1351 (Handgun carry permits);
(3) At the person's: (A) Place of residence; ...
...

It's literally just a different line item. How could one possibly conclude that carry in the home is any more defensible than carrying with a permit, based on these statutes?

LEOs in TN have 39-17-1350.
Law enforcement officers permitted to carry firearms -- Exceptions -- Restrictions -- Identification card for corrections officers.
(a) Notwithstanding any law to the contrary, any law enforcement officer may carry firearms at all times and in all places within Tennessee, on-duty or off-duty, regardless of the officer's regular duty hours or assignments, except as provided by subsection (c), federal law, lawful orders of court or the written directives of the executive supervisor of the employing agency.
(b) The authority conferred by this section is expressly intended to and shall supersede restrictions placed upon law enforcement officers' authority to carry firearms by other sections within this part.
...
 

JoeSparky

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I'm not a lawyer, but, I don't see how the defense for possession in the home is different than the defense for possession in public with a permit. The "defense" for possession in one's own home is made in the same manner as the "defense" for having a permit.

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:
...
(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315 or § 39-17-1351 (Handgun carry permits);
(3) At the person's: (A) Place of residence; ...
...

It's literally just a different line item. How could one possibly conclude that carry in the home is any more defensible than carrying with a permit, based on these statutes?

LEOs in TN have 39-17-1350.
Law enforcement officers permitted to carry firearms -- Exceptions -- Restrictions -- Identification card for corrections officers.
(a) Notwithstanding any law to the contrary, any law enforcement officer may carry firearms at all times and in all places within Tennessee, on-duty or off-duty, regardless of the officer's regular duty hours or assignments, except as provided by subsection (c), federal law, lawful orders of court or the written directives of the executive supervisor of the employing agency.
(b) The authority conferred by this section is expressly intended to and shall supersede restrictions placed upon law enforcement officers' authority to carry firearms by other sections within this part.
...
Me thinks he is differentiating between the propertyery owner and those renting or leasing.

Sent from my LG-D851 using Tapatalk
 

davidmcbeth

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I'm not a lawyer, but, I don't see how the defense for possession in the home is different than the defense for possession in public with a permit. The "defense" for possession in one's own home is made in the same manner as the "defense" for having a permit.

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:
...
(2) By a person authorized to possess or carry a firearm pursuant to § 39-17-1315 or § 39-17-1351 (Handgun carry permits);
(3) At the person's: (A) Place of residence; ...
...

It's literally just a different line item. How could one possibly conclude that carry in the home is any more defensible than carrying with a permit, based on these statutes?

LEOs in TN have 39-17-1350.
Law enforcement officers permitted to carry firearms -- Exceptions -- Restrictions -- Identification card for corrections officers.
(a) Notwithstanding any law to the contrary, any law enforcement officer may carry firearms at all times and in all places within Tennessee, on-duty or off-duty, regardless of the officer's regular duty hours or assignments, except as provided by subsection (c), federal law, lawful orders of court or the written directives of the executive supervisor of the employing agency.
(b) The authority conferred by this section is expressly intended to and shall supersede restrictions placed upon law enforcement officers' authority to carry firearms by other sections within this part.
...
An exception ... must be proven by those who benefit by it ... you are not required to recognize it as it does not exist until plead (in court). They have just opened up all LEOs in TN to arrest.
 

Fallschirjmäger

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An exception ... must be proven by those who benefit by it ... you are not required to recognize it as it does not exist until plead (in court). They have just opened up all LEOs in TN to arrest.
David, do you honestly think that the court is going to stand for having dozens, or even hundreds of city, county and state police officers standing in the docket (being paid) just to smile and point to the exception?
Do you think any sitting judge is going to be amused by such shenanigans and wasting of the court's valuable (golf courses aren't open 24/7 y'know) time?
Unless the officer preempts any communication with "Shut up, boy, one word from you and I'll plug ya." Then the detainee/arrestee is free to inform the officer that they meet the exception. Once the officer is made aware if it he can't just pretend he didn't know.
 

stealthyeliminator

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An exception ... must be proven by those who benefit by it ... you are not required to recognize it as it does not exist until plead (in court). They have just opened up all LEOs in TN to arrest.
With the strong language, I doubt it
Notwithstanding any law to the contrary, any law enforcement officer may carry firearms at all times and in all places within Tennessee ... The authority conferred by this section is expressly intended to and shall supersede restrictions placed upon law enforcement officers' authority to carry firearms by other sections within this part.

True that TN law appears to say "exceptions" in general must be called and proven by the defense*, but I don't think that's true in general (other states), and I doubt that 39-17-1350 would be taken as a 39-11-202 exception or be considered to have the limitations of a 39-11-202 exception. But, I'm not a lawyer, so, I could be all wet.

*39-11-202. Exception.
(a) An exception to an offense in this title is so labeled by the phrase: "It is an exception to the application of ...," or words of similar import.
(b) (1) Unless the statute defining an offense states to the contrary, the state need not negate the existence of an exception in the charge alleging commission of the offense.
(2) An exception to be relied upon by a person must be proven by a preponderance of the evidence.
 

stealthyeliminator

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Then the detainee/arrestee is free to inform the officer that they meet the exception. Once the officer is made aware if it he can't just pretend he didn't know.
According to what? Reason? Common sense? Neither are standards with our government. To me it seems he most certainly can continue with an arrest regardless of the permit or knowledge of it. If there is supposedly already PC and he supposedly isn't required to negate the existence of a permit before arrest then why would the 'suspect' claiming to have or even producing the permit change anything?

Again it seems to be a scenario of wanting the cake and to eat it too.

Bottom line is that it appears TN is completely relying to the benevolence of their LEOs to "allow" OC, while giving them the power to be tyrants. "It's legal if the LEO decides to allow it" is not really legal.
 

WalkingWolf

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According to what? Reason? Common sense? Neither are standards with our government. To me it seems he most certainly can continue with an arrest regardless of the permit or knowledge of it. If there is supposedly already PC and he supposedly isn't required to negate the existence of a permit before arrest then why would the 'suspect' claiming to have or even producing the permit change anything?

Again it seems to be a scenario of wanting the cake and to eat it too.

Bottom line is that it appears TN is completely relying to the benevolence of their LEOs to "allow" OC, while giving them the power to be tyrants. "It's legal if the LEO decides to allow it" is not really legal.
I agree, a defense to a offense cannot be offered until court, of course because police are not supposed to be holding court on the street. So they are legal in arresting carriers even if they display their permit. The person will still be out money for missing work, possible towing costs if a vehicle is involved, and possible court costs if the Judge so decides. Tn is not an open carry state.
 

davidmcbeth

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With the strong language, I doubt it
Notwithstanding any law to the contrary, any law enforcement officer may carry firearms at all times and in all places within Tennessee ... The authority conferred by this section is expressly intended to and shall supersede restrictions placed upon law enforcement officers' authority to carry firearms by other sections within this part.

True that TN law appears to say "exceptions" in general must be called and proven by the defense*, but I don't think that's true in general (other states), and I doubt that 39-17-1350 would be taken as a 39-11-202 exception or be considered to have the limitations of a 39-11-202 exception. But, I'm not a lawyer, so, I could be all wet.

*39-11-202. Exception.
(a) An exception to an offense in this title is so labeled by the phrase: "It is an exception to the application of ...," or words of similar import.
(b) (1) Unless the statute defining an offense states to the contrary, the state need not negate the existence of an exception in the charge alleging commission of the offense.
(2) An exception to be relied upon by a person must be proven by a preponderance of the evidence.
Immunity is the same ... does not exist until plead...many example of raise-able defenses that are perfect defenses. Statue of limitations is another in many states (must be raised).
 

Oh Shoot

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Whether we like it or not, and whether it's constitutional or not, the facts remain:

- TN constitution says:
"...the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

- TN firearms law begins with the premise that possession of a loaded firearm is unlawful (as per case law, a loaded firearm = "intent to go armed")

- One defense to that is a carry permit, covering hand guns only

- TCA says that you must carry said permit and show said permit when asked by LE

- Penalty for refusing is suspension or revocation of permit. Additional charges are a gray area.

Seems to me that unless one is trying to get arrested as a starting place to legally challenge any of these laws up through the court system, it's illogical to go through such hassle as this fellow did.

- OS
 

WalkingWolf

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What federal district appeals court is Tn in?

I see it is in the 6th, shame it is not in the 4th, then US V Black would make the stop, and arrest unconstitutional therefor illegal. But since it is not it is best to show the permit, then try to make a case in court later.
 
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stealthyeliminator

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Whether we like it or not, and whether it's constitutional or not, the facts remain:

- TN constitution says:
"...the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

- TN firearms law begins with the premise that possession of a loaded firearm is unlawful (as per case law, a loaded firearm = "intent to go armed")

- One defense to that is a carry permit, covering hand guns only

- TCA says that you must carry said permit and show said permit when asked by LE

- Penalty for refusing is suspension or revocation of permit. Additional charges are a gray area.

Seems to me that unless one is trying to get arrested as a starting place to legally challenge any of these laws up through the court system, it's illogical to go through such hassle as this fellow did.

- OS
I guess it depends on a person's priorities, but yeah.

(I personally don't criticize a person for taking a course of action that results in inconvenience or worse, oppression, when that course of action involves taking a stand against some injustice, even if it is not foreseeable that their stand will effect change.)
 
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