Another AG opinion on park carry & schools

[Fallguy]

http://www.tn.gov/attorneygeneral/op/2009/OP/OP160.pdf

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 28, 2009

Opinion No. 09-160

Carrying of Firearms in Parks Being Used by Schools

QUESTIONS

1. Please clarify the phrase “actually being used by schools†as used in Op. Tenn. Att’y

Gen. 09-129.

2. If a park is being used by a school, where, and at what times, may a handgun carry

permit holder lawfully carry his or her firearm in that park?

3. If handgun carry permit holders are permitted to carry firearms in parks pursuant to

Chapter 428 of the 2009 Public Acts of Tennessee, and a park, where the carrying of firearms is otherwise permitted, is being used by a school, who is responsible for the posting of notices that handguns are prohibited in the park because a school is using the park, and what form should such notice take?

OPINIONS

1. Tenn. Code Ann. § 39-17-1309 (

and © prohibit the carrying of firearms on any

property “used†by schools. A school is “using†the park when students and administrators are present on park grounds and are using park facilities for a school-sponsored activity.

2. Where and at what times a handgun carry permit holder may lawfully carry his or her

firearm into a park being used by a school is fact driven and can only be determined on a caseby-case basis.

3. There is no requirement for the posting of signs while a park or its facilities are being

used by a school.

ANALYSIS

1. Tenn. Code Ann. § 39-17-1309(

and © prohibit the carrying of firearms in any

public or private school building, bus, grounds, campus, athletic field, or recreational facility

that is owned, used, or operated by any school board, school or college. In Op. Tenn. Att’y

Gen. 09-129 (July 24, 2009), this office opined that Tenn. Code Ann. § 39-17-1309 prohibits

handgun carry permit holders from possessing firearms in public parks at times during which

the athletic fields or other recreational facilities are “actually being used by schools.†You have asked for a clarification of that opinion.

The primary objective of statutory construction is to ascertain the intent of the legislature.

LensCrafters, Inc. v. Sundquist,

33 S.W.3d 772, 777 (Tenn.2000). If the statutory language is clear and unambiguous, that intent is to be found “from the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction that would extend or limit the statute's meaning.†State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). “f the language of a statute is clear, we must apply its plain meaning without a forced interpretation.†Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 514

(Tenn. 2005).

Tenn. Code Ann. § 37-17-1309(

(1) states:

(

(1) It is an offense for any person to possess or carry, whether openly or concealed, with the intent to go armed, any firearm, explosive, explosive weapon, bowie knife, hawk bill knife, ice pick, dagger, slingshot, leaded cane, switchblade knife, blackjack, knuckles or any other weapon of like kind, not used solely for instructional or school-sanctioned ceremonial purposes, in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field or any other property owned, used or operated by any board of education, school, college or university board of trustees, regents or directors for the administration of any public or private educational institution.

1

Webster’s New College Dictionary (1995) defines “use†as “the enjoyment of property,

as by occupying or exercising it.†Therefore, the plain meaning of the word indicates that the

legislature intended that firearms be prohibited from park property while such property is

actually being occupied or used by a school. Some examples of schools using parks include:

school-sponsored tennis practice on park tennis courts, school-sponsored softball games on park fields, school-sponsored swim meets held at park recreation facilities, and school sponsored cross country meets that are run on park trails and grounds. The presence of these activities would indicate that a park is in fact being “used†by a school so that Tenn. Code Ann. § 39-17- 1309 would prohibit handgun carry permit holders from carrying firearms into the area where such activities are taking place.

2. The area where firearm possession would be prohibited could cover the entire park, or

portions of the park, depending upon the nature of the school activity taking place and the

configuration of the park property.2 A plain reading of Tenn. Code Ann. § 39-17-1309 indicates that guns are prohibited on property used by the school. Therefore, determining what portion of the park a school was using, as it concerns the prohibition of guns, has to be determined in accordance with what activity is taking place in relation to the configuration of the entire park in which it occurs.3 A determination of where guns could lawfully be carried in a park while a school is using the park would have to be determined on a case-by-case basis.4

3. Under the circumstances described in your question, this office can find no legal

authority that would require the posting of signs in areas of parks that are being used by schools. Although Tenn. Code Ann. § 39-17-1309 mentions the posting of signs, the statute only speaks to posting of signs “about the school.†Tenn. Code Ann. § 39-17-1309(d)(1). The statute is silent regarding the posting of signs on property “used†by schools. Absent any legal authority to the contrary, there is no posting requirement in parks that are being used for a schoolsponsored activity.

-----------------------------------------------------------------------------------------------------------------------------------------------------------------

1 The language of Tenn. Code Ann. § 39-17-1309(

is similar to the language of subsection ©. The primary differences between the two are that violations of subsection ( require proof of intent to go armed while subsection © has no such requirement.

2 For example, a softball game on one field of a park might require the prohibition of firearms in the immediate area around the softball field. On the other hand, a cross country meet that is being run on park trails might require the prohibition of firearms in the entire park.

3 A school could be using a park for any number or reasons, for example, team practices, team athletic competitions, conducting class room instruction, field days, etc.

4 It is likely that schools that use public parks for athletic and other activities will have entered into a written agreement with the county or municipality that owns the park. If such an agreement exists, it will probably assist the parties in making determinations concerning the areas where firearms will be prohibited and the time such prohibitions will be in effect.

[Guest logicprevails]

Philrobert Bredicooper muddies the waters even further! I guess by his logic, when a HCP person is legally carrying in a park and school students and administrators show up, the HCP person should immediately know this through telepathy and vacate.

[Oh Shoot]

Philrobert Bredicooper muddies the waters even further! I guess by his logic, when a HCP person is legally carrying in a park and school students and administrators show up, the HCP person should immediately know this through telepathy and vacate.

No, I think you're supposed to find the nearest LEO and turn yourself in.

If none is around, you're to call 911 and report yourself as Man With Gun.

- OS

[Guest logicprevails]

No, I think you're supposed to find the nearest LEO and turn yourself in.

If none is around, you're to call 911 and report yourself as Man With Gun.

- OS

If I genuinely feel that I'm a threat of serious bodily injury or death to myself, can I shoot me?

[creeky]

My son in elementary school took a field trip to Publics. (Why I have no idea, but I digress.)

As I read his opinion, a HCP holder could have been shopping in that unposted store when the school group came in, and as if by magic... it would mean the HCP holder is now in violation of the law.

Am I reading this wrong?

[macville]

My son in elementary school took a field trip to Publics. (Why I have no idea, but I digress.)

As I read his opinion, a HCP holder could have been shopping in that unposted store when the school group came in, and as if by magic... it would mean the HCP holder is now in violation of the law.

Am I reading this wrong?

Well, if you take the law as clear black and white English when you consider the word "use", then yes. That's why the law needs to be changed so you can carry any any school! At the very minimum, the law needs to have "used" removed. Therefore, you could only not carry on school grounds.

Matthew

[creeky]

..or the burden of posting correctly is on the establishment, not the HCP holder.

[Fallguy]

My son in elementary school took a field trip to Publics. (Why I have no idea, but I digress.)

As I read his opinion, a HCP holder could have been shopping in that unposted store when the school group came in, and as if by magic... it would mean the HCP holder is now in violation of the law.

Am I reading this wrong?

Don't quote me...but a field trip to a place is not the same as "using" a place, I don't think. But it really isn't clear, I agree.

While not required, he mentions in footnote 4 written agreements. Even as bad as his opinions have been...I don't think he is saying any place that students and teachers show up mean they are "using" that place for the purposes of 39-17-1309

However all of these opinions really only talk about parks and not other places.

I agree changing the school law to either allow carry at schools or make it where carry is prohibited only on the actual school grounds would be better.

Edited September 29, 2009 by Fallguy

[Oh Shoot]

If I genuinely feel that I'm a threat of serious bodily injury or death to myself, can I shoot me?

I think so, but be sure that it was a reasonable fear of yourself, then you won't likely be charged with the original carry violation. Be sure to shoot yourself until your threat to yourself is stopped, ie, shoot yourself to the ground.

But they'll perhaps still charge you with shooting inside city limits or something (if you live). You'd have to ask the friggin AG for an (in)expert opinion about that one.

- OS

[Guest Boomhower]

report yourself as Man With Gun.

LOL.....that is great!....thanks for the laugh.

[JayC]

My son in elementary school took a field trip to Publics. (Why I have no idea, but I digress.)

As I read his opinion, a HCP holder could have been shopping in that unposted store when the school group came in, and as if by magic... it would mean the HCP holder is now in violation of the law.

Am I reading this wrong?

As the law is written today, yes.... If they show up at McD's you'd have to get up and leave.

Also, worse if a college frat shows up at McD's for a 'school sanctioned event' you'd be in violation of the law as well... Or show up at the gold course to play a round of golf.

It's a bad law that needs to be changed.

[JayC]

I'm sorry Fallguy, but using the statement from the AGs letter:

Webster’s New College Dictionary (1995) defines “use†as “the enjoyment of property,

as by occupying or exercising it.†Therefore, the plain meaning of the word indicates that the

legislature intended that firearms be prohibited from park property while such property is

actually being occupied or used by a school. Some examples of schools using parks include:

school-sponsored tennis practice on park tennis courts, school-sponsored softball games on park fields, school-sponsored swim meets held at park recreation facilities, and school sponsored cross country meets that are run on park trails and grounds. The presence of these activities would indicate that a park is in fact being “used†by a school so that Tenn. Code Ann. § 39-17- 1309 would prohibit handgun carry permit holders from carrying firearms into the area where such activities are taking place.

Clearly any school sponsored activity at ANY location is use under this logic and therefore HCP holders would be in violation of the law. While he talks only about parks, the law clearly does not limit itself to parks, but to ANY place in USE by a school. (Also note this covers use by colleges and universities as well not just primary and secondary schools).

Clearly if the school shows up at a park for 'field day' or a class picnic it would be covered under the currents AGs opinion, and since the law isn't limited McDs or Publix would also seem to be included according to the logic the AG is using.

It's a bad law and needs to be changed.

Don't quote me...but a field trip to a place is not the same as "using" a place, I don't think. But it really isn't clear, I agree.

While not required, he mentions in footnote 4 written agreements. Even as bad as his opinions have been...I don't think he is saying any place that students and teachers show up mean they are "using" that place for the purposes of 39-17-1309

However all of these opinions really only talk about parks and not other places.

I agree changing the school law to either allow carry at schools or make it where carry is prohibited only on the actual school grounds would be better.

[Fallguy]

He (The AG) also notes that the whole park may not be off-limits if the school is only using part of it.

So wouldn't that hold true for other places then?

If the field trip is at the city library that is located in city hall...then they library may be off-limits, but the entire city hall, right?

Also I would argue (and probably loose, I admit) that simply students and teacher being present doesn't mean it is being used by the school. If that same field trips stops at McDonald's...aren't they just normal patrons like everyone else? The school is not really using McDonald's for a school function.

[JayC]

He (The AG) also notes that the whole park may not be off-limits if the school is only using part of it.

So wouldn't that hold true for other places then?

If the field trip is at the city library that is located in city hall...then they library may be off-limits, but the entire city hall, right?

Also I would argue (and probably loose, I admit) that simply students and teacher being present doesn't mean it is being used by the school. If that same field trips stops at McDonald's...aren't they just normal patrons like everyone else? The school is not really using McDonald's for a school function.

I agree that maybe parts of the business isn't off limits, but hard to argue the entire dining area isn't since it's generally 1 big room. As for the City Hall and Library again I think you could argue some of it might not be off limits, but as you also stated the AGs letter doesn't provide clear cut direction, which means it's a risky to be anywhere in the park or business which is occupied by a school sanctioned activity.

I would argue that students, teacher(s) or other employees using any place in the state for a school-sponsored event would render all or part of that location off limits to legal carry. You'll note that the AG letter doesn't indicate solely the presence of children, or even students but all school-sponsored events.

As for your normal patrons logic, while I agree that is the way it should be, how are students using a tennis court not normal patrons of a public park? Them using the tennis courts for practice does not stop you and I from using a tennis court right next to it at the same time, they are no different than you and I as patrons of the park, the only difference is it's a school-sponsored activity, and there is the problem with the current law.

As currently written if the AG opinion is correct, any activity that is school-sponsored renders the location a no-carry zone (in part or whole is determined on a case by case basis - which is a very scary thought)...

Here is another example... if a teacher takes their students to a park, to play on the playground we can all agree according to the AGs opinion at least part of the park is closed, if the same teacher takes their students to a McD's or Zoo and allows the students to play on the playground, then again part of the location is closed to carry... The type of activity has no limits under the current state law, only if the activity is school sponsored or not and my bet is most people would argue all stops on a school sponsored field trip ARE part of the school sponsored activity... Not sure I'd want to try and argue the opposite in court.

Also, this has a much greater issue than people realize, because this exact same law applies to more than just K-12 students, but all persons involved in sponsored events from any school, college, university or private educational institution... So, when the Vandy cross country team runs through the state park as part of their daily practice, part or all of the park is closed to legal handgun carry.

How about an even crazier part of the law, lets say you have a marksman group from JROTC at the local high school come to the range for the day to practice, while the firearms being used by the instructors and students would be legal, all other firearms in use at that range while they're there would be illegal under current law?!?! And while we're at it, it could be any group from any public or private educational institution that could trigger this law...

Sure the likelihood of being charged and then convicted would be minimal, but if you had asked me 3 years ago if a guy would get sent to federal prison because of a weapon malfunctioning and firing 2 rounds I would have laughed you out of the room.

My point is the law is absurd and clearly needs to be changed. Call me crazy but I honestly believe a DA could make hay out of this and at the very least cause a HCP holder to spend a lot of money defending themselves.

Edited September 30, 2009 by JayC

[macville]

Here's a little good news for you guys. I am meeting with my state Rep Ryan Haynes sometime in the next two weeks to talk about how we can fix this problem among other carry issues with the law. Hopefully, we can figure out how to have the law re-written to fix this crap.

Matthew

[Fallguy]

My point is the law is absurd and clearly needs to be changed.

Can totally agree with you on that.

Also not that I disagree with you on the other...just rather debate it here.....before in a courtroom...

[JayC]

Can totally agree with you on that.

Also not that I disagree with you on the other...just rather debate it here.....before in a courtroom...

Me too... this is just one of those laws that drive me nuts, makes me wonder what the legislators were smoking when they passed this one.. But then I remember in all likelihood they didn't even bother to read it.