Tennessee now has the potential for millions of adults to carry a handgun in Tennessee with or without a permit. That environment gives rise to a significant question in Tennessee which is – if a law enforcement officer sees an individual carrying a handgun in public is that sufficient to allow the officer to make an investigatory stop of the individual? The answer to this question requires a careful consideration of Tennessee law.
The first step in the analysis likely requires that we determine what the elements of a crime of carrying a firearm are under Tennessee law and then look at what the defenses or exceptions to the crime may be. Why? The state is responsible for proving the elements of a crime and that is all that it must prove. The individual is at least initially responsible for proving that his or her conduct falls within one of the defenses or exceptions. The primary consideration for whether the officer has the right to stop the individual likely turns only on the issue of what are the elements of the crime – not on the existence of possible defenses or exceptions.
It is a crime in Tennessee for an individual to carry a firearm with the intent to go armed. There are only two fundamental elements to the crime. Was the individual carrying a firearm? Second, did the individual have the intent to go armed? Both of these elements are found in Tennessee Code Annotated § 39-17-1307(a)(1) which states:
(a)(1) A person commits an offense who carries, with the intent to go armed, a firearm or a club.
Unlike many other states Tennessee law is written so that any individual who carries a firearm with the intent to go armed commits a crime. Other states have laws written so that it is not a crime to openly carry a firearm or which may make it a crime to carry a concealed weapon without a permit or, like Vermont, where it is simply not a crime for a citizen to carry a firearm openly or concealed.
Instead of defining the conduct as “not a crime”, the Tennessee Legislature has instead chosen to create a number of “defenses”, such as in Tennessee Code Annotated § 39-17-1308, or “exceptions”, such as in Tennessee Code Annotated §§ 39-17-1307(e) or -1307(g), to a crime. At present, Tennessee does not have an environment where carry a firearm in public with intent to go armed – independent of any other facts, conditions or qualifications – is simply not a crime.
Under Tennessee law the existence of a “defense” or an “exception” is not something that the state must deal with in order to investigate a potential crime, in its decision to bring charges or even in its case in chief at trial. Generally, the defense or exception must be raised by the defendant and only then does the state have the burden to disprove its application at trial.
The fact that the individual has the burden to initially raise all the elements of a defense and then – only after that is done – the state has the burden to “negate” one or more elements of the defense is clearly established in Tennessee’s criminal procedure. Tennessee Code Annotated § 39-11-201(a) provides (emphasis added):
(a) No person may be convicted of an offense unless each of the following is proven beyond a reasonable doubt:
(1) The conduct, circumstances surrounding the conduct, or a result of the conduct described in the definition of the offense;
(2) The culpable mental state required;
(3) The negation of any defense to an offense defined in this title if admissible evidence is introduced supporting the defense; and
(4) The offense was committed prior to the return of the formal charge.
Tennessee defines by statute both the term “defense” and the term “exception”. Both of these definitions make clear that the state is not required to disprove or “negate” a defense or an exception unless and until the defendant has clearly raised at trial the entitlement to rely on the defense. The term “defense” is defined in Tennessee Code Annotated § 39-11-203as follows:
(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.
The term exception is defined similarly in Tennessee Code Annotated § 39-11-202:
(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.
There is significance in whether something is classified as a “defense” or an “exception” under the Tennessee statutes. As noted above, a “defense”, such as having a handgun permit, can be raised by the defendant and once it is fairly raised the burden shifts to the State under Tennessee Code Annotated § 39-11-201(a)(3) to “negate” the defense. However, in instances where the avoidance option is classified as an “exception” in the statute it appears that the burden to prove the facts and availability of the exception, such as permitless carry, stays on the accused since there is no burden-shifting language for exceptions as there is for defenses. Indeed, the footnotes to Tennessee’s pattern jury instructions in criminal cases (see Tennessee Pattern Jury Instruction Criminal 36.08) specifically instructs the judge to charge a jury as follows: “If an exception is charged, it should end with the following sentence: “If the defendant proves this exception by a preponderance of the evidence, you must find [him] [her] not guilty.”“
Therefore, because of the way that Tennessee’s statutes are written, an officer who observes someone carrying a firearm in public in a manner which indicates an intent to go armed (such as carrying it holstered) could easily demonstrate that there is probable cause to believe at that point that a crime has been committed. That may be all that is required to make an “investigatory” stop for the crime of carrying a firearm with the intent to go armed.
Tennessee law has changed numerous times since its modern handgun permit law was first written in 1994, but none of those rewrites have deleted the crime of carrying a firearm with intent to go armed. Further, it is not as if the Legislature does not know how to do that because during this same time frame it did delete the crime of carrying a knife with a blade greater than 4 inches. Instead, the Legislature has chosen a path where is has continued year after year to preserve the capacity of law enforcement to at least stop citizens who are carrying a firearm in public and it has placed the burden on the individuals to prove after they have been stopped that they fit into an exception or defense.
Some may be suggesting that an officer cannot in Tennessee perform a “Terry stop”, which is also known as a “stop and frisk”, when they observe an individual carrying a gun in public. However, it may be that such conclusions miss the point of the Supreme Court in its decision in Terry v. Ohio, 362 U.S. 1 (1968). The Court phrased the question before it as this “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.”
In Terry a law enforcement officer observed some individuals engaged in conduct which might be described as “casing” a specific business. No crime was observed but the conduct did make the officer concerned that a crime, a robbery, was about to occur. The officer approached the individuals, apparently identified himself and when the individuals did not offer identification the officer took custody of one of the individuals and began searching the individual in what was clearly a Fourth Amendment seizure. In the course of that search, the officer discovered a revolver. The Court was reviewing whether the officer’s actions were reasonable under the Fourth Amendment. One of the issues for the Court was whether the officer, under the facts and circumstances known to the officer at the time, acting reasonably in believing that a crime had been or was being committed by the detained individual and whether it was reasonable for the officer to make an investigatory stop. Under the facts of this case, the Court found that the initial investigatory stop was justified. The Court also considered, if there was a reasonable basis for an investigatory stop, whether there was also a reasonable basis to pat down or frisk the individual for weapons for the officer’s safety. The Court rejected the argument that a frisk was only appropriate incident to an arrest. Instead, it “conclude[d] that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”
In Tennessee, the issue of whether an officer can perform the first type of stop discussed in Terry – the investigatory stop – is the analysis that is dependent on the state statutes regarding whether carrying a firearm in public is the exercise of a constitutionally protected right or whether it is merely a criminal act for which the individual may have one or more available defenses. If the conduct was the free exercise of a constitutional right, there would be no probable cause for an officer to believe a crime was committed by merely observing an individual carrying a firearm with the intent to go armed. But that is a law that the Governor and the Legislature have repeatedly refused to enact in Tennessee – a law that implements true constitutional carry.
Instead, Tennessee’s Legislature and Governor have chosen to make it a crime to carry a firearm in public and have set up a spectrum of defenses or exceptions that the individual must demonstrate to avoid or defeat the criminal charge. The observation of those facts by an officer is likely all that is required for an officer to make that initial investigatory stop. At that point, it is up to the officer and the individual to address the issue, if both desire to do so, of whether there is a valid and available defense or exception to the crime, whether the individual meets all the elements of the defense or exception and, consequently, whether it would be a waste of time and effort for the officer to charge the individual with a crime only to have it later be dismissed when the defense is raised.
If you believe that it is a constitutionally protected right to carry a firearm in Tennessee for self-defense, you may want to consider supporting the efforts of the Tennessee Firearms Association as we are faced again with the burden of pushing for real constitutional carry in Tennessee. You may also want to investigate which Tennessee legislators are blocking the implementation of REAL Constitutional Carry in Tennessee and work with TFA to expose that legislators so that they can be removed from office as soon as possible. Further, you might want to look into which organizations support REAL Constitutional Carry and which support legislative traps for citizens who merely want to and believe that they can exercise fundamental constitutionally protected rights.