New AG Opinion on Carry in Parks???

[TnEngineer]

Someone in touch, please make sense of this as all hell is breaking loose about the supposed new Att. Gen. opinion on carry in parks.

Read the hysteria/mis-quotes/mis-spelling etc. here:

Tennessee AG issues new opinion on 'guns in parks' law Knoxville News Sentinel

This thing is spiraling out of control as we speak......

[Smith]

I believe that the whole thing is screwed up and news outlets wonder why they are going bankrupt.

[Guest redbarron06]

I would like to see how the AG figures that a city banning guns in parks will reduce crime? Under the TN Constitution you can only ban the wearing of guns to prevent crime.

[Oh Shoot]

I would like to see how the AG figures that a city banning guns in parks will reduce crime? Under the TN Constitution you can only ban the wearing of guns to prevent crime.

Huh?

I mean, what?

I mean, whaddya ya mean?

- OS

[Fallguy]

Here is a link to the opinion.

The first 4 questions have to do with the constitutionality of the new law.

He basically says the legislature has broad powers to determine and that they only have to have a plausable view to prevent crime. Also that they don't have to show how would prevent crime.

Question 5-8 have to do directly with parks.

5. Ask if the must post signs if the pass a resolution or ordnance to prohibit carry and he says, Yes.

6. Ask if a permit holder could be convicted if no signs are posted. He says they could, if the prosocution (state) can show the lack of signs were not an element of the crime. I'm not sure but I take that to mean if you were violating another part of 39-17-1311 or that for some reason you should have still known that park was off limits. But I take him to basically say that state would have to show that you knew you were breaking the law even though there were no signs. So if there aren't any signs you have a pretty good chance in court.

7. Ask about travelling a public roadway....as has been stated on TGO before...a pubilc roadway is a public roadway...it doesn't matter what you are passing through. As long as you stay on the roadway and don't enter a posted park, you could not be convicted.

8. Says counties and cities are not liable for any injuries to you that may occur because the park is posted.

At least that is how I take it...

Edited September 24, 2009 by Fallguy

[GKar]

Not so sure about #6. The way I read the AG's analysis, he is saying that the failure of a municipality to properly post is not a related element to the crime of carrying in a posted area (perhaps, due to the whole "It's illegal to carry a firearm in TN, and these situations are permissible defenses" thing):

"Applying the reasoning in Brooks to Tenn. Code Ann. § 39-17-1311, as amended by Chapter 428, the posting of signs in parks where the carrying of firearms is prohibited is not an element of a violation of Tenn. Code Ann. § 39-

17-1311. A handgun carry permit holder could therefore be convicted of violating Tenn. Code Ann. § 39-17-1311 for carrying a firearm into a county or municipal park, where such carrying is prohibited, even if such county or municipality failed to post the required signs."

[Fallguy]

Hmmmm.....you may be right.

However I think one difference in what he sights about schools as compared to parks is that all schools are off limits, so everyone should know that. There is not a chance that some are ok to carry and others are not. So I could see how not having a sign in that case really doesn't make a difference.

But if some parks are ok and others are not.....how are you supposed to know if there isn't a sign?

Edited September 25, 2009 by Fallguy

[GKar]

The manner in which it is written is really confusing (not that a lawyer would ever write anything confusing, huh?). I would totally agree with your explanation if the next paragraph didn't begin by stating that the cited Brooks case was on point...but I just don't know.

To me, even the possibility that the failure of a municipality to properly post is irrelevant to the ability to be convicted is a strong signal that the law needs immediate revision to close that loophole: if municipalities choose to opt out, they must be forced to properly notify the citizenry. Of course, the best way to remove the loophole is to remove their ability to opt out (or hide behind some archaic pre-Neanderthal statute)...I'm just not sure our legislators have the belly to revisit it now.

[Guest redbarron06]

The first 4 questions have to do with the constitutionality of the new law.

He basically says the legislature has broad powers to determine and that they only have to have a plausable view to prevent crime. Also that they don't have to show how would prevent crime.

I was under the understanding that an earlier TN Supreme court rulling had determined that in order for it to be legal the law had to be able to show the intent to prevent crime. None of these cities have even brought up the fact that requiring citizens to be unarmed in a park will reduce crime (mostly because they know it is a lie) They have had one of 2 arguments.

A) guns dont belong in parks.

or

it will endanger the children and general public.

Nothing about crime.

In op 3 he states

So long as the law bears a plausible relationship to the prevention of crime, it will be valid.

None of these laws bears that plausibility.

Also he sais this

2. A county or municipal ordinance or resolution to prohibit the carrying of firearms in parks, which such county or municipality owns and that is enacted pursuant to Chapter 428, ought to withstand constitutional challenge on the theory that such ordinance is not a regulation made by law within the meaning of Art. I, § 26, of the Tennessee Constitution.

Now unless I am reading this wrong what he is saying is that a ordanance is not a law or regulation. This seems to me like double speak. To me this means that the city of Nashville could pass an "ordanance" that says no guns in the city limit and it would be ok and enforcable by the NPD because it is not a law or regulation.

[Guest HexHead]

5. Ask if the must post signs if the pass a resolution or ordnance to prohibit carry and he says, Yes.

AG Issues New Opinion on "Guns in Parks" Law

Attorney General Bob Cooper has issued a legal opinion on several aspects of the "guns in parks" law in response to questions posed by Rep. Ben West, D-Nashville.

Included was this question on a matter that has inspired some discussion and an answer:

On the other hand, the opinion says a permit holder could be convicted it the county or city has failed to post signs declaring guns are prohibited, as required by the "guns in parks" law.

The opinion otherwise declares that the new law does not violate state constitutional provisions.

WTF? What part of "as required by" doesn't he understand? And this is the guy that's going to be defending HB 0962s constitutionality?

We're screwed.

The State legislature needs to take ALL opt-out provisions out of the HCP carry rules.

[Guest Ggun]

From the AG:

" A handgun carry permit holder who carries a firearm into a county or municipal park where the county or municipality has prohibited such carrying could still be convicted of violating Tenn. Code Ann. § 39-17-1311 even if such county or municipality failed to comply with the posting requirements that are set forth in section 2(e)(2) of Chapter 428."

S T A T E O F T E N N E S S E E

OFFICE OF THE

ATTORNEY GENERAL

PO BOX 20207

NASHVILLE, TENNESSEE 37202

September 22, 2009

Opinion No. 09-158

[frontier737]

Of course! Why make it easy for the law abiding citizen?

[creeky]

Doesn't it follow, with this opinion, that the same would then apply to businesses that do not post properly as well?

Just curious...

[Metalhead]

I would think so..

[GLOCKMEISTER]

thats complete BS... AG'S OPINION THAT IS

[TNTitan]

hmm.. I wonder if I could also be in violation of speeding or running a stop sign if that is also not properly posted? The logic sure seems to follow..

[Guest HexHead]

Why is it we're the ONLY ones expected to follow the law? No, make it that have to follow the law?

[creeky]

Why is it we're the ONLY ones expected to follow the law? No, make it that have to follow the law?

There seems to be no level ground anymore.

[-boatman-]

This really worries me. I go into a lot of parks away from home while geocaching. If a park is not posted I assume they have not opted out unless I have read about it and REMEMBERED it. But that is hard to do also unless it is one of the bigger towns that has had a lot of media attention. How someone can be arrested and convicted when the law says it must be posted is beyond me. I would like to see what the sponsors of the bill would have to say about this.

[kckndrgn]

OK, so the AG seem to be contradicting himself a little.

Go here to read the entire opinion:

http://www.tn.gov/attorneygeneral/op/2009/OP/OP158.pdf

5. If a county or municipality chooses to prohibit the carrying of firearms in parks which they own, where must they post their signs to satisfy the posting requirements that are set forth in Chapter 428

His answer:

5. Under section 2(e)(2) of Chapter 428, a county or municipality that decides to prohibit the carrying of firearms in parks which they own is required to post signs in prominent locations that give notice that firearms are prohibited in such parks. To satisfy that requirement, such signs must be placed at locations that would make them conspicuous to persons who are entering park property

Next question:

6. If a county or municipality chooses to prohibit the carrying of firearms in parks which they own, could a permit holder be convicted of violating Tenn. Code Ann. § 39-17-1311 if such county or municipality failed to comply with the posting requirements set forth in Chapter 428?

His answer:

6. A handgun carry permit holder who carries a firearm into a county or municipal park where the county or municipality has prohibited such carrying could still be convicted of violating Tenn. Code Ann. § 39-17-1311 even if such county or municipality failed to comply with the posting requirements that are set forth in section 2(e)(2) of Chapter 428

So he states that they are required to post the signs, then says you will still get charged for carrying if they don’t post.

Here is the detail on the answer to question 6:

6. You ask if a handgun carry permit holder could be convicted of violating Tenn. Code Ann. § 39-17-1311 for carrying a firearm into a county or municipal park where such carrying is prohibited if the county or municipality failed to comply with the posting requirements that are set forth in Chapter 428. In the prosecution of a criminal case, the State bears the burden of proving every element of an offense. State v. Dotson, 254 S.W.3d 378 (Tenn. 2008). The question is thus whether proof that such signs were properly posted is an element of the offense.

If the failure to post signs in a park where the carrying of firearms is prohibited is such an element, then a carry permit holder could not be convicted of violating Tenn. Code Ann. § 39-17-1311 if the state failed to prove that such signs were posted. On the other hand if proof of such posting is not an element, then a handgun carry permit holder could be convicted of violating Tenn. Code Ann. § 39-17-1311 even if the county or municipality that has prohibited the carrying of firearms in parks which they own has failed to post the required signage.

State v. Brooks, 741 S.W.2d 920 (Tenn. Crim. App. 1987), is directly on point. In that case, the court held that the failure of a school to satisfy the sign posting requirements was not a defense to a charge of carrying a firearm on school grounds. The court concluded that the sign posting requirement was not an element of the offense. Applying the reasoning in Brooks to Tenn. Code Ann. § 39-17-1311, as amended by Chapter 428, the posting of signs in parks where the carrying of firearms is prohibited is not an element of a violation of Tenn. Code Ann. § 39-

17-1311. A handgun carry permit holder could therefore be convicted of violating Tenn. Code Ann. § 39-17-1311 for carrying a firearm into a county or municipal park, where such carrying is prohibited, even if such county or municipality failed to post the required signs.

So, he is equating “carrying in a prohibited place†(i.e. school) with carrying in a place that may or may not be prohibited. I can see where a school does not need to post, as that is a place that is specifically prohibited by law. A park is not prohibited, unless the city/county opts out. But then, I guess it would fall under the old law that said parks are prohibited, just like schools.

This is VERY confusing

[creeky]

I think they are trying to make it that way on purpose. :-\

[Fallguy]

So, he is equating “carrying in a prohibited place†(i.e. school) with carrying in a place that may or may not be prohibited. I can see where a school does not need to post, as that is a place that is specifically prohibited by law. A park is not prohibited, unless the city/county opts out. But then, I guess it would fall under the old law that said parks are prohibited, just like schools.

This is VERY confusing

I agree

I don't think the case he sites is 100% on point, as you say...ALL schools are off-limits, by default, regardless.

Parks are legal by default....they are only off limits if the local government passes an ordnance or resolution.

How in the world are you supposed to know if it is not posted?

I mean 39-17-1359 used to say post or announce, now it only says post. If you follow his logic, he is saying that private business don't have to post, basically he is saying that any place that is legal, by default, does not have to post.

He has been known to revisit opinions if knew information is offered, surely there is a state legislator or lawyer that can point out some of these discrepancies to him?

[creeky]

Maybe he needs to post an opinion on his opinion.

[Fallguy]

Maybe he needs to post an opinion on his opinion.

Not so sure...double talk about double talk would be quadruple talk....and not sure we could take that....lol

[macville]

Maybe he needs to post an opinion on his opinion.

He doesn't have to. I can tell you without being a lawyer that he does not understand what the law says.

I would say that if we can't get the opt-out removed, there at least needs to be a line added to the law that would make it a defense to the law if the proper signs were not posted. To be honest, we shouldn't have to add that since the wording is pretty plain. However, since people like the AG want to read stuff into the law that is simply not there, we have to add wording to make it even MORE clear.

Matthew