Challenge "Guns-in-bars" Law: Nashville attorneys David Randolph Smith & Adam Dread

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Guns in bars to face local legal challenge | Nashville City Paper: Nashville's Online Source for Daily News

Wednesday, June 17, 2009 at 11:00pm

By Nate Rau

So, do 37 other states have laws similar to the one Tennessee’s legislature passed this month allowing guns in establishments that serve alcohol?

Well, that’s the statement the media and proponents of the guns-in-bars bill tossed around throughout the debate about the legislation’s merits. Everyone from the bill’s sponsor, state Sen. Doug Jackson, to conservative talk show hosts to the media spokesman for the National Rifle Association have said something to that effect.

The numbers did change from time to time.

The Associated Press reported when the bill passed that “37 other states have similar laws.†Bradley County Sheriff Tim Gobble told the Cleveland (Tenn.) Daily Banner, “There are 38 other states who already have similar laws like this in motion and it seems to be working for them.â€

And there’s Jackson himself, who told everyone from WKRN Channel 2 to Fox News, the number was actually 40 states.

“I would just point out that 40 states allow citizens to carry guns where alcohol is served,†the senator said.

Yet it turns out that no matter which of those numbers are used, they are wrong.

Numbers worth exploring

Based on extensive legal research conducted by Nashville attorney David Randolph Smith of the local firm Smith and Schmidt, the actual figure is nearly the inverse.

There ARE 37 states according to Smith that have laws mandating the issuance of concealed weapons permits. But of those 37 states, 27 explicitly prohibit guns in places where alcohol is served.

In fact, there are only 15 states in the country which have circumstances remotely similar to the one Tennessee will be in on July 14 when the law goes into effect. Those states issue concealed weapons permits, but do not explicitly ban guns in places serving alcohol. They also preempt local governments from regulating firearms.

In effect, a person with a handgun in a bar in any of those 15 states is not committing a criminal act. But Tennessee’s new law goes one step further than that. It is the first state in the entire country to expressly allow handguns in places that serve alcohol.

Smith believes Tennessee committed “legislative malpractice†when its General Assembly voted to override Gov. Phil Bredesen’s veto of the guns-in-bars bill, and he intends to do something about. He’s leading a coalition that’s formulating a potential legal challenge to guns-in-bars.

“In effect, Tennessee by this new law has legislated a public nuisance and created an explicit right to bring handguns into bars,†Smith said. “This is unprecedented in U.S. law and runs afoul of the law and policy in the vast majority of states that do not permit concealed weapons in bars, or otherwise restrict, or prohibit loaded and concealed weapons in public places.â€

Dread helps line up plaintiffs

Working with Smith on a potential legal challenge is Nashville attorney Adam Dread, a former Metro Council member and a handgun owner.

It was Dread who introduced the notion that Metro could prohibit guns in Nashville bars by regulating beer permits. His idea eventually led to a bill sponsored by At-large Council members Megan Barry and Charlie Tygard.

In the end, the concept fizzled out when Metro's legal department determined that state law preempted Metro’s ability to regulate firearms. Tygard has withdrawn the bill, but Dread has vowed to fight on.

“We’re going to build a coalition of like-minded folks who want to do everything we can to keep Nashville safer,†Dread said.

Dread said he would also be reaching out to prominent Nashville organizations, including the business community, the hospitality community and faith-based groups.

The coalition could come in the form of a lawsuit challenging the state law as creating a public nuisance and putting those who work in bars and restaurants in a danger.

Smith said his preference would be for Metro to take the lead and challenge the state law, but so far no momentum has built on that front. Metro Director of Law Sue Cain had no comment for this story.

If Metro decides to stay out of the fight, then Smith and Dread said they would pursue a legal challenge on another front.

Already more than one Nashville server has agreed to file a complaint claiming the law creates an unsafe work environment. Fearing potential backlash, the server declined to comment for this story.

Local restaurateur Randy Rayburn said he’s on board to be included in a legal challenge, too, and explained his stance.

“I think that the vocal minority of supporters of this legislation perpetrated fraud in their presentation of facts to the legislators and the public,†Rayburn said.

Guns and booze don’t mix

Smith said his goal is not simply to bring to light the fact that most states expressly outlaw carrying weapons in establishments that serve alcohol. Smith believes case law demonstrates that courts believe the possession of guns around alcohol is in and of itself a public nuisance.

A 1983 Washington state Supreme Court ruling upheld the constitutionality of a municipal ordinance limiting the possession of firearms where alcoholic beverages are dispensed by the drink.

In 1996, Mark Lake was charged with “unlawful carrying of firearm in establishment licensed to dispense alcoholic beverages.†Lake’s case went to the New Mexico Court of Appeals, where the court ruled the statute “was reasonably related to public health, safety and welfare.â€

Smith said the court’s logic matched with his own, that limiting firearms in places that serve alcohol is an issue of public health, safety and welfare.

“The ultimate victory, if it would ever happen, would be for the court to recognize a constitutional right to be free from gun violence, public or private,†Smith said.

Smith does have a history of swimming upstream. He was the attorney who represented a Spanish-speaking woman who brought forward a pre-election challenge to the English Only referendum. Smith believed the English Only proposal was unconstitutional and presented special circumstances to be enjoined.

He lost, but Smith showed a propensity to fight for specific social issues.

“If Metro won’t take up the issue, then we are going to bring a legal challenge,†he said.

[Guest redbarron06]

This guy needs to be smacked in the back of the head.

[Fallguy]

I can't stand to read the whole thing...

Such ignorance just starts giving me such a headache....

[creeky]

In fact, there are only 15 states in the country which have circumstances remotely similar to the one Tennessee will be in on July 14 when the law goes into effect. Those states issue concealed weapons permits, but do not explicitly ban guns in places serving alcohol. They also preempt local governments from regulating firearms.

They forgot to mention they made no attempt to contact the states AG to see if they had documented a sudden rise in shootings in restaurants since their laws were in acted.

Oh wait, the facts would damage their agenda. My bad.

[Guest Jamie]

This guy needs to be smacked in the back of the head.

Sounds like he's already had one too many blows to the head, to me...

[GKar]

When my wife and I step across the state line into Virginia (300 yards from my house), we can carry into any restaurant - alcohol or not - as long as its "open" carry. And folks do - Chili's, Red Lobster, Logan's, etc. And strangely enough, there are no problems at all... what is it about Tennessee residents that some in government think is so different that we cannot be trusted to behave like the rest of the nation?

[Guest pws_smokeyjones]

Fallguy, I agree, it made my head hurt just trying to read that junk. All pissing and moaning aside, how are we going to tackle this? Mr. Randolph and Mr. Dread need to hear from us I think. Anybody got a phone number or email for those guys?

For crying out loud, the only reason TN had to pass a law specifically allowing carry into restaurants that serve is because the morons passed a law in the past specifically denying us that right. If we were like PA, there never would been that prohibition, and we could just carry with no problem. If a lowly network engineer can figure that logic out then surely these two superstar city attorney's can get it.

[Fallguy]

Fallguy, I agree, it made my head hurt just trying to read that junk. All pissing and moaning aside, how are we going to tackle this? Mr. Randolph and Mr. Dread need to hear from us I think. Anybody got a phone number or email for those guys?

For crying out loud, the only reason TN had to pass a law specifically allowing carry into restaurants that serve is because the morons passed a law in the past specifically denying us that right. If we were like PA, there never would been that prohibition, and we could just carry with no problem. If a lowly network engineer can figure that logic out then surely these two superstar city attorney's can get it.

You are 100% correct, the only reason we have a law that expressly allows it is because there was a law expressly against it.

Could have just as easily repealed 39-17-1305 in it's entirety and allowed carry EVERYWHERE alcohol is served, but the way it was done was to try and limit carry to restaurants.

When someone is this far off the deep-end I'm not sure if there is any amount of reasoning and facts that can bring them back.

[E4 No More]

I'm no lawyer, but I would think that since the law allows the individual businesses to legally prohibit carrying into their establishments with a simple sign would blow their argument of legislating a nuisance out of the water.

[Guest pws_smokeyjones]

I think this is Attorney David Smith;

David Smith :: Lawyer - Nashville, Tennessee (TN) :: Attorney Profile :: Super Lawyers

And I am pretty sure this is the Adam Dread in question;

Adam Dread | Durham and Dread

I plan on contacting these gentlemen but don't yet have my argument all pieced together the way I want it. Anytime I hear of lawyers putting together coalitions of like minded people etc... I don't like it one bit.

[Guest pws_smokeyjones]

I'm no lawyer, but I would think that since the law allows the individual businesses to legally prohibit carrying into their establishments with a simple sign would blow their argument of legislating a nuisance out of the water.

My interpretation is that they are going to file against Senator Jackson and Representative Todd on the grounds that they misrepresented the facts in their argument with regards to the number of states already allowing carry in restaurants that serve.

I agree with you, but this thing is not 100% over yet and I didn't get all suited up just to be ahead and then walk off the field before the forth quarter ended.

[E4 No More]

My interpretation is that they are going to file against Senator Jackson and Representative Todd on the grounds that they misrepresented the facts in their argument with regards to the number of states already allowing carry in restaurants that serve.

I agree with you, but this thing is not 100% over yet and I didn't get all suited up just to be ahead and then walk off the field before the forth quarter ended.

That would be a very dangerous precedent to sue every politician for every inaccurate statement made. Hell! You could sue all of them for that! LOL!

[Fallguy]

My interpretation is that they are going to file against Senator Jackson and Representative Todd on the grounds that they misrepresented the facts in their argument with regards to the number of states already allowing carry in restaurants that serve.

I agree with you, but this thing is not 100% over yet and I didn't get all suited up just to be ahead and then walk off the field before the forth quarter ended.

OMG...LOL...what next?!?

First I don't think Rep Todd or Sen Jackson misrepresented anything, but there is plenty of misrepresentation on the floor at any given time....and even some flat out lies. What in the world does that have do with any piece of legislation that is passed?

It's sort of like in court...a statement from a lawyer is not fact or evidence when questioning a witness or talking to the jury.

:rolleyes:

[Guest pws_smokeyjones]

I completely agree with you Fallguy. I guess my point is that even as absurd as this is, I would hate to get this far and then let some Attorney screw it up on a trumped up technicality.

[Guest pws_smokeyjones]

According to Adam Dread:

"“We’re going to build a coalition of like-minded folks who want to do everything we can to keep Nashville safer,” Dread said."

Really - well why don't you focus on getting rid of the illegals and the gang bangers in Nashville and surrounding cities rather than wasting your time trying to trample on the rights of law abiding citizens you clown!!!

[Falcon1]

According to Adam Dread:

"“We’re going to build a coalition of like-minded folks who want to do everything we can to keep Nashville safer,†Dread said."

Really - well why don't you focus on getting rid of the illegals and the gang bangers in Nashville and surrounding cities rather than wasting your time trying to trample on the rights of law abiding citizens you clown!!!

You answered your own question...he's a clown.

[JayC]

I'm no lawyer, but I would think that since the law allows the individual businesses to legally prohibit carrying into their establishments with a simple sign would blow their argument of legislating a nuisance out of the water.

That would seem to be the case... You can make a much better argument that working in a smoke filled restaurant is a greater health risk than people around you carrying guns... Yet if you brought a suit it would have to be against your own employer and likely the case would be thrown out as you choose to work there, you can always get a job where people don't smoke or don't carry guns...

This just won't fly imho.

[Guest Jamie]

You answered your own question...he's a clown.

Why do I get the feeling you guys may have just offended clowns everywhere?

Oh, and kdpate... you're more than welcome to that particular task. I don't think any of the rest of us want any part of it.

[E4 No More]

What is really disingenuous is their pointing out that he owns a handgun like that validates him somehow.

[Guest benchpresspower]

Jesus, they just won't let it go will they? I wonder if other states had this much opposition. The Naifeh effect is just like cancer. I was thinking, maybe we all could pool together some $$$$$ and rent some billboards across the state and have the law stating permit holders cannot drink and carry and the new "restaurant carry" law along with the process an individual has to go through to obtain a permit. Obviously, politicians, liberals, anti gunners, lawyers, councilmen, and media doesn't know how to do their homework.

[RinTN]

I was going to take a few minutes and point out several of the problems with the article. Then I realized that in the comments section there are several good posts that explain the fallacies and misrepresentations. It would be singing to the choir here anyway.

[Guest justme]

Guns in "bars" is ILLEGAL---how stupid are some people?

"Guns in bars" was illegal before and is still ILLEGAL--is the media not smart enough to read or what? An education is required to be a journalist yes?

[Guest dlstewart01]

I wonder if either of these guys have ever had an ambulance back over them

[Punisher84]

Won't matter. AG already said they can't prohibit it. Let them yell and throw their tantrum. Law is on OUR side now.

[Guest HexHead]

So, at exactly what point did TN become a state full of douchebags and idiots? There sure doesn't seem to be any shortage of either lately.