Is THIS a law, or not?

[Guest Straight Shooter]

Ok, Im racking my brain trying to remember if this is a law or not. Please..those of you with knowledge of TN law please chime in.

Is there, or isnt there, a law on the books that says, paraphrasing now, that a person who is carrying a weapon in a place where it is unlawful to do so, or who is carrying a weapon without a HCP, BUT has to use that weapon in a legally justified way, cannot be prosecuted?

Example: Im in my fav Mexican joint, enjoying a meal. As of now, I cant legally carry there anymore because they serve alchohol. But, Im carrying anyway. All a sudden, robbers burst in, and start robbing/threatening and beating up staff and customers. I pull my Glock21 and take em out. CAN I be charged, and what for? I swear I seem to remember my HCP instructor sayimg we had a law like this in TN. Any info greatly appreciated!!

[Reservoir Dog]

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.]

[Steelharp]

So, you can be arrested for having it on you peacefully, but if you need it... "Aww, it's ok."

[Fallguy]

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.]

That's the one.

Just a note though. The TN Supreme Court has ruled that you can still be charged with a crime because 39-17-1322 also has the wording "convicted of". They said the only way a person could be in jeopardy of being convicted is if they have already been charged. But if the shoot is ruled justified self-defense you can't be convicted with a violation of any 39-17-13xx law. Also the LEO/DA could decide it is self-defense and not charge you.

[DaveTN]

If the cops and District Attorney decided it was in self defense; they are not required to prosecute. However, there is no ban from prosecution.

Here is what the Tennessee Supreme Court said about it.

(The entire transcript is interesting reading if you want to know why the court was looking at this case.)

http://www.tba2.org/tba_files/TCCA/2008/clarkt_041108.pdf

In looking at the statute herein, it states that 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.†T.C.A. § 39-17-1322. The State argues that this language serves “as a directive to law enforcement and district attorneys that should they determine, based upon their investigation and using their discretion, that a person acted in justifiable self-defense, they shall not seek to indict that individual.†We agree. This statute, along with others that grant legislative immunity for actions that ordinarily amount to criminal activity, “evidence the unambiguous legislative intent to pronounce the Tennessee public policy of encouraging citizens to rescue a person reasonably believed to be in imminent danger of death or serious bodily harm, and to protect a citizen who undertakes such heroic action from negative repercussions.†Little v. Eastgate of Jackson, LLC, No. W2006-01846-COA-R9-CV, 2007 WL 1202431, at *9 (Tenn. Ct. App., at Jackson, Apr. 24, 2007)(pointing out Tennessee Code Annotated section 39-17-1322 as a statute that provides for “defenses to prosecution for an offense against public health, safety, and welfare†during an examination of statutes that encourage and promote conduct which would ordinarily be prohibited). We do not agree with Appellee’s assertion that the language of Tennessee Code Annotated section 39-17-1322 operates as a complete bar to indictment and prosecution for actions that are performed in “self defense.†If the legislature had intended actions performed in “self-defense†to operate as an absolute bar to prosecution, then it would have been unnecessary to include the language that prohibits conviction in the statute. In other words, if the statute barred indictment, there would be no reason to address a conviction under Tennessee Code Annotated section 39-17-1322, as there can be no prosecution without a valid indictment. Dykes v. Compton, 978 S.W.2d 528, 529-30 (Tenn.1998).

Having determined that the statute does not prohibit indictment, we now review the trial

court’s decision to dismiss the indictment herein. The decision whether to dismiss an indictment lies within the discretion of the trial court. State v. Harris, 33 S.W.3d 767, 769-70 (Tenn. 2000) (citing State v. Benn, 713 S.W.2d 308, 311 (Tenn. 1986)). “Appellate courts ‘may not interfere with a ruling made within the discretionary powers of the trial court absent clear abuse.’†Id. at 770 (quoting State v. Street, 768 S.W.2d 703, 709 (Tenn. Crim. App. 1988)). Therefore, we will not disturb the decision of the trial court absent an abuse of discretion.

[Guest Straight Shooter]

THANKS to all who gave info! This is exactly what I thought I heard. I knew someone here would know!

[Guest 270win]

You can be charged for anything...including intent to go armed EVEN with a permit. Your permit is just a 'defense' to intent to go armed. Of course, 99% of police and prosecutors are not going to have you charged if you are in legal possession of a weapon.

As far as a restaurant, technically you can still be charged even after a justifiable self defense situation. Whether the charges stick, that is up to the prosecutor. You have to weigh the cost VS benefits. A wise prosecutor will drop the charges and move on to real criminals. The alcohol deal in TN is a misdemeanor....it really amounts to are you willing to fork out the money to fix a misdemeanor? No you won't lose your gun rights...but it will cost you money.

[Oh Shoot]

.......it really amounts to are you willing to fork out the money to fix a misdemeanor? No you won't lose your gun rights...but it will cost you money.

Carrying under the influence and carrying in place that serves alcohol for on site consumption are both Class A misdemeanors.

You lose your HCP for any Class A misdemeanor conviction for duration of sentence; probation is part of a sentence. Then you have to apply to have it reinstated, it's not automatic.

I imagine this might put you in jeopardy of the "danger to public" clause also.

- OS

[Guest 270win]

I was referring to being prohibited from owning a firearm...such as a convicted felon. A good lawyer can often deal with misdemeanor charges and get them dropped for a price, if you have a clean record. I am not advocating breaking the law, but there is a big difference between dealing with a felony charge and a misdemeanor charge.

[Oh Shoot]

I was referring to being prohibited from owning a firearm...such as a convicted felon. A good lawyer can often deal with misdemeanor charges and get them dropped for a price, if you have a clean record. I am not advocating breaking the law, but there is a big difference between dealing with a felony charge and a misdemeanor charge.

All true, and I agree, but it's just that I consider TN HCP as part of my "gun rights".

- OS

[JayC]

Just keep in mind that TN law professors can't agree on whether the ruling re-instated the ban on carry or not.

[knoxrocks222]

as of july of 2009 you can carry into a place that sells/serves alcohol unless otherwise posted and if its posted all you have to say is i didnt see the sign and all they can do is ask you to take it to the car

[Oh Shoot]

as of july of 2009 you can carry into a place that sells/serves alcohol unless otherwise posted and if its posted all you have to say is i didnt see the sign and all they can do is ask you to take it to the car

So you're a cop, huh?

Right.

- OS

[Fallguy]

as of july of 2009 you can carry into a place that sells/serves alcohol unless otherwise posted and if its posted all you have to say is i didnt see the sign and all they can do is ask you to take it to the car

That is incorrect.

From the state's website Handgun Carry Permits

Persons Prohibited from Carrying Firearms into Establishments Serving Alcohol

On November 20, 2009, the Davidson County Chancery Court held that the law allowing Tennessee handgun carry permit holders to carry their handguns into establishments serving alcohol was unconstitutional. As a result, the prior law which prohibited all persons from carrying firearms into establishments serving alcohol is back in effect.

[JayC]

As a result, the prior law which prohibited all persons from carrying firearms into establishments serving alcohol is back in effect.

Seeing as law professors can't even agree if this is the case or not, and the AG has not rendered his opinion on the matter yet...

This is a DoS legal opinion on the matter which does not carry the same weight as an AG opinion...

It's prudent not to carry since what exactly is in effect regarding restaurant carry at this point is up in the air.

[Oh Shoot]

Seeing as law professors can't even agree if this is the case or not, and the AG has not rendered his opinion on the matter yet...

C'mon...an egghead prof or two has opined regarding courts vs legislature, but that's all.

The AG's office said it would file an appeal so obviously it feels it's binding. Did it actually file the appeal?

HCP holders had best consider the court injunction binding, too, unless someone wants to be a high profile and expensive test case.

The legislature obviously does, otherwise it wouldn't be working to amend the statute.

- OS

[peejman]

So consider step two in this question... the statutes listed above may get you out of a criminal prosecution. What about the inevitable civil suit? I'm quite sure that illegally carrying your gun will be used against you.

[Fallguy]

So consider step two in this question... the statutes listed above may get you out of a criminal prosecution. What about the inevitable civil suit? I'm quite sure that illegally carrying your gun will be used against you.

It may be used against you, but if in the end it ruled a justifiable self-defense shoot then by law you have no civil liability.

Illegal possession/carry is not one of the exceptions in 39-11-622

[peejman]

It may be used against you, but if in the end it ruled a justifiable self-defense shoot then by law you have no civil liability.

Illegal possession/carry is not one of the exceptions in 39-11-622

Didn't know that... thanks for the info. To me, the "wrongful death" civil suit scenario was far more worrisome than any criminal proceedings.

[JayC]

C'mon...an egghead prof or two has opined regarding courts vs legislature, but that's all.

The AG's office said it would file an appeal so obviously it feels it's binding. Did it actually file the appeal?

HCP holders had best consider the court injunction binding, too, unless someone wants to be a high profile and expensive test case.

The legislature obviously does, otherwise it wouldn't be working to amend the statute.

- OS

I don't think anybody (including myself) is saying the case isn't binding. Only exactly what happens under state law when you knock out a section of the law as unconstitutional, does the previously more restrictive law come into effect? I've read 2 different articles by 2 different law professors stating there is some question as to what exactly is enforce now, and what is not.

I clearly stated it was prudent not to carry into a restaurant right now because if law professors don't know the answer how can we as laypersons know the answer?

But just because the lawyers at DoS say the ruling means X doesn't make it so... it's not binding on anybody unlike a ruling from the AG's office.

As for the argument that the AG's office is appealing the ruling... They think it's perfectly okay to define a restaurant in the law, and disagree that it is unconstitutionally vague... That is a completely different matter from what exactly does striking down a provision under the law do under state law and case law. The AG's office would be appealing the ruling if the law had been struck down in a way to allow carry in all places that serve liquor...

Again, I'm NOT suggesting that we all start carrying into restaurants that serve liquor (or beer or wine)... Only that exactly what the ruling did to the law isn't as clear cut as many people (including myself) thought it was... and it's a curious grey area under state law. Also, that just because the DoS puts a statement on their website doesn't mean anything, they have no special power to regulate (or render legal opinions on) carry law... that is reserved to the AG's office.

Let me stress one last time, DON"T CARRY INTO RESTAURANTS THAT SERVE RIGHT NOW (unless of course you're covered under some other provision of the law).. This is nothing more than a layperson armchair version of arguing over the number of angles which can dance on the head of a pin.