When threaten; Judge says at least point your gun

[threeshot]

Judge: Man might have been better off pulling trigger at school | tennessean.com | The Tennessean

Judge: Man might have been better off pulling trigger at school

By Mitchell Kline • The Tennessean • May 21, 2009

FRANKLIN — A Williamson County judge sentenced a Fairview man to 20 days in jail for handling a gun on school property -- and said the man might have been better off if he’d pulled the trigger.

On Thursday, Tracy C. Clark, 37, told Circuit Court Judge James G. Martin III, that he’d gotten into a verbal altercation at Westwood Elementary School on Jan. 30, 2006 after his 9-year-old son’s basketball game. Clark said the father of rival player came to his truck and held a knife as if threatening to stab him.

Clark, who had a handgun carry permit, said he told the man he had a gun and pulled a 9 mm handgun from the center console of his pickup truck and put it on the driver’s seat. The gun was not loaded and never left its holster, according to Clark.

“I never brandished it,†Clark said. “I never showed it. I did not know what the best thing to do was.â€

Martin said under state law regulating weapons on school property, Clark might have avoided a conviction if he had actually pointed the gun or used it because that would have demonstrated self-defense.

“There’s no question he was in a situation where a man pulled a knife on him,†Martin said. “It’s an extremely unusual statute… in the defense side of it. While it’s illegal to possess a firearm (on school grounds) it’s OK if you use it to defend yourself.â€

Martin found Clark guilty of possession of a weapon on school property, a class B misdemeanor. The judge sentenced Clark to 20 days in jail, ordered him to take anger management classes and said he cannot possess or handle a firearm.

“It’s ironic that, under the statute, if he’d have pointed it at him things would be different,†Martin said. “By his own testimony he didn’t display it or use it in self-defense.â€

In 2006, Circuit Court Judge Timothy Easter dismissed the charge against Clark, ruling he acted in self-defense. Last year, the state’s Court of Appeals ruled that Easter erred in dismissing the charge and remanded the case for reinstatement of the indictment.

[Fallguy]

Thanks for posting...I had wondered how this case turned out...

[jdogvol]

So, because he DIDN'T use his weapon in self-defense, he is now prohibited from ever using it in self-defense? What a stupid ruling.

[Guest TNK]

So, because he DIDN'T use his weapon in self-defense, he is now prohibited from ever using it in self-defense? What a stupid ruling.

oops didn't see that part

Edited May 22, 2009 by TNK
glanced over article

[Fadex]

"The judge sentenced Clark to 20 days in jail, ordered him to take anger management classes and said he cannot possess or handle a firearm."

Ummm....doesn't say he lost his HCP...but that little plastic card isn't worth much if you can't possess or handle a firearm.

[Guest Jamie]

So, because he DIDN'T use his weapon in self-defense, he is now prohibited from ever using it in self-defense? What a stupid ruling.

It seems to me that the fellow did use the gun for self-defense... I mean, he told the guy with the knife he had a gun, then he pulled it out of the console amd laid it on the seat. And even though he says the fellow didn't see it, the person apparently believed he had a weapon and discontinued the attack.

39-17-1322. Defenses. —

A person shall not be charged with or convicted of a violation under this part if the person possessed, displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim.

[Acts 1994, ch. 943, § 1.

Now, I'm no attorney, but if the above is the defense to possessing a handgun on school property, isn't it arguable that the guy did indeed "possess" and "employ" his gun to defend against being attacked, even though he didn't point or fire it?

.

[GLOCKMEISTER]

time to appeal that bad boy... IMHO

[Guest Jamie]

You ain't just whistlin' Dixie... I'm also thinking a better attorney is in order.

That is, if he even had one to begin with.

[lowbud]

This is exactly why there shouldn't be limitations where permit holders can carry their weapons. The laws are totally screwed up. Problem is, we are the only ones following these stupid laws which leave us more or less defenseless. I don't get it.

[oldogy]

So what about the guy who brought the knife to a gunfight? What were the charges against him? Not that it matters but IMHO the judge is dumber than dumb. Or is the law the part that is dumb.

oldogy

[Fallguy]

This case was sent back to the trial court from the appelate court.

The orginal trial judge did dismiss the case based upon 39-17-1322 and that the guy did use his gun in self-defense. The state appealed that ruling. The appleat court found the trial judge erred in dismissing. The appleate court said the "self-defense" would have to be detemined at trial and not in a pre-trial motion and reffered the case back.

What is posted here is the results of the second trial.

I agree that he "displayed" it in self-defense. However in the article the judge is quoted as saying the guys own testimony said he did not display or touch it in self-defense. If he did say that...he pretty much shot his case right there.

Edited May 22, 2009 by Fallguy

[Guest Old goat]

gotta watch what you say, anything can and will.

[lowbud]

gotta watch what you say, anything can and will.

Ya got that right. However, if and/or when I ever have to pull mine.. There will be no "showing" it. If I have to un-holster it.. there will be a bullet leaving the barrel.

Let's face it.. If you have reached that level of fear. It's go time! Nothing to discuss at that point. at least not to anyone but your attorney.

[Fallguy]

If you like you can see the ruling of the appellate court here. It has info about the orginal trial.

Also Justice Thomas T. Woodall wrote a separate, but concurring, opinion that directly addresses 39-17-1322. It can be read here.

[Guest HexHead]

time to appeal that bad boy... IMHO

Nevermind. The Appellate Court made good points. Apparently 39-17-1322 can be used as a defense, but not on it's own to get charges dismissed.

But he should have decisively pulled the gun on the guy when he told him to back off.

Edited May 22, 2009 by HexHead

[Guest Jamie]

So what about the guy who brought the knife to a gunfight? What were the charges against him? Not that it matters but IMHO the judge is dumber than dumb. Or is the law the part that is dumb.

oldogy

To me, this one has the reek of small town politics at work, and an assistant D.A. that's trying to further his career by winning every case he can, no matter what.

I don't know if the person involved can appeal it again, but if it were me, I'd certainly be found trying.

[Guest HexHead]

To me, this one has the reek of small town politics at work, and an assistant D.A. that's trying to further his career by winning every case he can, no matter what.

I don't know if the person involved can appeal it again, but if it were me, I'd certainly be found trying.

According the Appellate decision, he pleaded guilty to carrying a weapon on school grounds. It didn't specify what his sentence was.

I would imagine the defendant can appeal the decision since the first appeal was brought by the state. I don't see what his grounds for appeal would be though? He stated that he didn't show the guy the gun in a self-defense posture, but he did handle the gun on school property.

There's a lesson here for all of us.

[Guest Jamie]

According the Appellate decision, he pleaded guilty to carrying a weapon on school grounds.

Oops... I missed that part. Not enough coffee in me yet, I guess.

That being the case, he did indeed screw himself over... which further re-enforces the idea that he didn't have an attorney to begin with.

Dumb... just plain dumb.

[Fallguy]

According the Appellate decision, he pleaded guilty to carrying a weapon on school grounds. It didn't specify what his sentence was.

I would imagine the defendant can appeal the decision since the first appeal was brought by the state. I don't see what his grounds for appeal would be though? He stated that he didn't show the guy the gun in a self-defense posture, but he did handle the gun on school property.

There's a lesson here for all of us.

In the article it says he was found guilty. Also I don't see anything in the appellate ruling that says he pleaded guilty to anything then, just says he was charged with carry of weapon on schools grounds and filed a motion to dismiss based upon 39-17-1322. The first trial judge granted that, but the appellate court overruled him and sent it back.

He was finally sentenced to 20 days, plus anger management and can not handle or possess a weapon in the last trial.

However I would say you are correct in that he can appeal the conviction, since the other appeal was by the state for the dismissal.

But too, not sure what the grounds for the appeal would be. If you have ever read and appellate court ruling they say they look at the case most favorable to the state (when a defendant appeals) since the case has already been adjudicated. So you have to show that the judge, DA or someone really screwed up to have the guilty ruling changed...not just because you didn't like it.

Edited May 22, 2009 by Fallguy

[cadillacdude1975]

i say he got screwed.

[Guest SigVol]

This case was sent back to the trial court from the appelate court.

The orginal trial judge did dismiss the case based upon 39-17-1322 and that the guy did use his gun in self-defense. The state appealed that ruling. The appleat court found the trial judge erred in dismissing. The appleate court said the "self-defense" would have to be detemined at trial and not in a pre-trial motion and reffered the case back.

What is posted here is the results of the second trial.

I agree that he "displayed" it in self-defense. However in the article the judge is quoted as saying the guys own testimony said he did not display or touch it in self-defense. If he did say that...he pretty much shot his case right there.

Fallguy - how would you have handled the situation?

Have you found any information as to any charges filed against the knife brandishing moron?

Thanks!!!

[cadillacdude1975]

and i was sitting here thinking, the ruling said it was legal to defend yourself but at the same time it is illegal to handle a weapon on school property. the last time i checked, in order to use a weapon for self defense, one must handle the weapon to use it in a defending manner.

this has got to be a loophole he could use to get an appeal.

[whiskey]

This goes back to the old adage...

If you are going to pull it, you better be ready to use it.

I have always told my wife not to pull her gun out to scare someone off. I tell her to keep it concealed, hand of the gun, until it is time to defend your life. Cases like this are they very reason I teach her this.

He should get a better lawyer and appeal. The fact remains that he was in his car and instead of leaving, he pulled out his gun to scare a guy off that he had been arguing with. Of course I am not aware of the full situation and he may have done the best thing.

[DavidCBaker]

and i was sitting here thinking, the ruling said it was legal to defend yourself but at the same time it is illegal to handle a weapon on school property. the last time i checked, in order to use a weapon for self defense, one must handle the weapon to use it in a defending manner.

this has got to be a loophole he could use to get an appeal.

You can defend yourself in other ways besides a gun on school property.

[threeshot]

Fallguy posted the link to the original trial that contains the details missing from the newspaper article. Read pages 2 - 3.

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/082/clarktopn.pdf