Should we sue over 39-17-1359?

[Guest redbarron06]

In light of the decision last year of a Nashville judge that the restaurant carry law was "unconstitutionally vague" I have been thinking.

How vague is the statement in bold? This is the current law for a owner/operator to post property if they do not want weapons carried on their property.

39-17-1359. Prohibition at certain meetings — Posting notice. —

(a) An individual, corporation, business entity or local, state or federal government entity or agent thereof is authorized to prohibit the possession of weapons by any person otherwise authorized by §§ 39-17-1351 — 39-17-1360, at meetings conducted by, or on property owned, operated, or managed or under the control of the individual, corporation, business entity or government entity. Notice of the prohibition shall be posted. Posted notices shall be displayed in prominent locations, including all entrances primarily used by persons entering the building, portion of the building or buildings where weapon possession is prohibited. If the possession of weapons is also prohibited on the premises of the property as well as within the confines of a building located on the property, the notice shall be posted at all entrances to the premises that are primarily used by persons entering the property. The notice shall be in English but a notice may also be posted in any language used by patrons, customers or persons who frequent the place where weapon possession is prohibited. In addition to the sign, notice may also include the international circle and slash symbolizing the prohibition of the item within the circle. The sign shall be of a size that is plainly visible to the average person entering the building, premises or property and shall contain language substantially similar to the following:

PURSUANT TO § 39-17-1359, THE OWNER/OPERATOR OF THIS PROPERTY HAS BANNED WEAPONS ON THIS PROPERTY, OR WITHIN THIS BUILDING OR THIS PORTION OF THIS BUILDING. FAILURE TO COMPLY WITH THIS PROHIBITION IS PUNISHABLE AS A CRIMINAL ACT UNDER STATE LAW AND MAY SUBJECT THE VIOLATOR TO A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS ($500).

( Nothing in this section shall be construed to alter, reduce or eliminate any civil or criminal liability that a property owner or manager may have for injuries arising on their property.

© Any posted notice being used by a local, state or federal governmental entity on July 1, 2000, that is in substantial compliance with the provisions of subsection (a) of this section may continue to be used by the governmental entity.

(d) The provisions of this section shall not apply to title 70 regarding wildlife laws, rules and regulations.

(e) This section shall not apply to the grounds of any public park, natural area, historic park, nature trail, campground, forest, greenway, waterway or other similar public place that is owned or operated by the state, a county, a municipality or instrumentality thereof. The carrying of firearms in those areas shall be governed by § 39-17-1311.

[Acts 1996, ch. 905, § 11; 2000, ch. 929, § 1; 2009, ch. 428, § 4.]

Now can anybody here including the LEOs, property owners, or attorneys give me a legal definition to “substantially similar� It seems to be to be a bit vague.

Now here is what we have for schools

(d) (1) Each chief administrator of a public or private school shall display in prominent locations about the school a sign, at least six inches (6) high and fourteen inches (14) wide, stating:

FELONY. STATE LAW PRESCRIBES A MAXIMUM PENALTY OF SIX (6) YEARS IMPRISONMENT AND A FINE NOT TO EXCEED THREE THOUSAND DOLLARS ($3,000) FOR CARRYING WEAPONS ON SCHOOL PROPERTY.

(2) As used in this subsection (d), “prominent locations about a school†includes, but is not limited to, sports arenas, gymnasiums, stadiums and cafeterias.

Nothing vague there.

How about the parks carry

c) (1) Each chief administrator of public recreational property shall display in prominent locations about the public recreational property a sign, at least six inches (6) high and fourteen inches (14) wide, stating:

MISDEMEANOR. STATE LAW PRESCRIBES A MAXIMUM PENALTY OF ELEVEN (11) MONTHS AND TWENTY-NINE (29) DAYS AND A FINE NOT TO EXCEED TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) FOR CARRYING WEAPONS ON OR IN PUBLIC RECREATIONAL PROPERTY.

(2) As used in this subsection ©, “prominent locations about public recreational property†includes, but is not limited to, all entrances to the property, any building or structure located on the property, such as restrooms, picnic areas, sports facilities, welcome centers, gift shops, playgrounds, swimming pools, restaurants and parking lots.

I don’t see much vague there.

So should we a HCP holders file suit because of the vagueness of 39-17-1359? Now don’t get me wrong I think private property owners have all the rights to ban carry on their property if they want to but the way the law is written is vague for the owner, the HCP holder, any responding officer and is pretty much left up to the discretion of the judge the hears the case. In fact it is no vague, that the AG has needed to issue an opinion on the subject. Schools, and Pars are required to state specific verbage, in certain size, on signs at certain places. Why would private property owners not have the same requirment, for clearification for all?

Without getting into the argument of individual rights for the property owners should we file suit on this?

Pros and Cons:

Personally I don’t see how this vagueness could be upheld and I think that we would win the suit, especially in light of last year’s suit in Nashville. So if it is ruled as unconstitutional, it would be thrown out just and restaurant carry was last year. This would basically mean that until they fixed the law there would be no way to legally post property and all signs would mean squat (this is currently the law as I understand it in Florida, Georgia and a few other states). I am sure that pressure from anti gun activities would make the assembly address this next session. Here is where the cons may come up. They could pass a law that would say the international sign is all that is needed to post. They could pass a law that says that any posting would suffice. On the other hand they could do the same as they have done for schools and parks and set exact limits on posting requirements (IMHO this is what needs to be done).

What are your thoughts?

Before sombody sais something this is not meant to be a revenge suit againt the turds that filed the resturaunt bill. This is meant to clearify (or force the state to clearify) the law. If you look around there are all kinds of threads about is this place legally posted, is that place, does this qualify as posting. HCP holders, in many cases, are far more knowledgable that the local police on the subject of carry. I am not blaming them, they have a lot they have to keep up with but the law needs to be more defined for all, HCP, LEOs, property owners, and judges.

[Guest TNReb]

I tossed this out in another thread on the Restaurant Carry Bill. I like the idea, but if you look at the bill that passed, it defines the term "substantially similar." It also says you can use the international symbol, the statutory language, or both. And unless you got the suit in front of an activist judge who's on our side (not likely), they would probably say the language was sufficient. So while I do like the concept, the expense and uncertainty of the result probably weigh too heavily against it. Maybe it would be better to wait until next year when everyone's not as focused on the issue and see if we can do something to clean it up. That way, I can use the money to buy another gun!

Also, I kinda like the posting from the standpoint of being able to know who to do business with. Like you, while I support the right of anyone to post their business or property as they wish, I support my right to choose whether or not to give you my money based on that choice.

[Fallguy]

I do think the current 39-17-1359 is vague and a lawsuit may have a good chance.

Hower as pointed out SB3012, that is on the governor's desk, does give guidence to substantiallysimilar in that it must include 3 certain things. Also this bill does allow the international symbol alone to be a legal posting.

So if SB3012 becomes law I think a suit woud be a bit harder to win.

[Guest redbarron06]

I do think the current 39-17-1359 is vague and a lawsuit may have a good chance.

Hower as pointed out SB3012, that is on the governor's desk, does give guidence to substantiallysimilar in that it must include 3 certain things. Also this bill does allow the international symbol alone to be a legal posting.

So if SB3012 becomes law I think a suit woud be a bit harder to win.

Looking at the text of the bill, it could still be pretty vague. What if the red circle and slash are through a revolver?

[DaveTN]

Now can anybody here including the LEOs, property owners, or attorneys give me a legal definition to “substantially similar� It seems to be to be a bit vague.

Do you understand what the sign meant when you saw it?

If your argument is that you did not; you may have a valid defense in court if you are cited.

If your argument is that it was not a legal sign; the judge will make that call in court if you are cited.

Is there case law that would clarify the law? That is something that we don’t know.

Why would you want to sue? Right now you may have a defense should you choose to ignore the law. If you force a clear cut sign; they will be printed by some enterprising individual and sold to the anti-gun business owners.

Has anyone been cited or arrested for this? It sure is talked about a lot for something that as far as we can tell has not happened.

[midtennchip]

There is a difference between "uncontitutionally vague" and "vague." For a law (rather than a sign or the wording on the sign) to be unconstitutionally vague, the law itself much meet the following criteria: If a person of ordinary intelligence cannot determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law, then the law will be deemed unconstitutionally vague.

Read more: Void for Vagueness Doctrine Void for Vagueness Doctrine

In my opinion, the law itself is not particularly vague. As Dave pointed out, if you did not understand the particular sign at an establishment, you can argue that the sign was not substantially similar to the language in the statute, but I don't think the law itself is that vague. From the law, you can determine the three (3) issues that need to be missing in an unconstitutionally vague law.

[kb4ns]

There is a difference between "uncontitutionally vague" and "vague." For a law (rather than a sign or the wording on the sign) to be unconstitutionally vague, the law itself much meet the following criteria: If a person of ordinary intelligence cannot determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law, then the law will be deemed unconstitutionally vague.

Read more:

Void for Vagueness Doctrine Void for Vagueness Doctrine

In my opinion, the law itself is not particularly vague. As Dave pointed out, if you did not understand the particular sign at an establishment, you can argue that the sign was not substantially similar to the language in the statute, but I don't think the law itself is that vague. From the law, you can determine the three (3) issues that need to be missing in an unconstitutionally vague law.

Good information as always.

You should become a lawyer!

[kb4ns]

So it'd be fair to say that getting the law changed could eliminate one possible (depending on the situation)defense should you ever get charged for carrying past a sign...

[Fallguy]

There is a difference between "uncontitutionally vague" and "vague." For a law (rather than a sign or the wording on the sign) to be unconstitutionally vague, the law itself much meet the following criteria: If a person of ordinary intelligence cannot determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law, then the law will be deemed unconstitutionally vague.

Read more:

Void for Vagueness Doctrine Void for Vagueness Doctrine

In my opinion, the law itself is not particularly vague. As Dave pointed out, if you did not understand the particular sign at an establishment, you can argue that the sign was not substantially similar to the language in the statute, but I don't think the law itself is that vague. From the law, you can determine the three (3) issues that need to be missing in an unconstitutionally vague law.

Just to be clear, it is SB3012 that has the three issues in it, not the current law.

But very good clarification on what make a law void for vagueness

[mikegideon]

Personally, this isn't an issue to me. If there is an obvious intent to ban guns, then I won't carry in that place. Most likely, I won't go in at all, if I have a choice.

[eapking]

Personally, this isn't an issue to me. If there is an obvious intent to ban guns, then I won't carry in that place. Most likely, I won't go in at all, if I have a choice.

+1...they will be put on my ever growing list of places I boycott.

[Guest Jamie]

It seems to me that rather than argue over whether a sign is legal or not, or what the punishment is or should be for ignoring it, we'd all be better served to push for a law or amendment that exempts HCP holders from them in the first place.

And yeah, I know... not gonna happen any time soon. :-\

J.

[midtennchip]

Just to be clear, it is SB3012 that has the three issues in it, not the current law.

But very good clarification on what make a law void for vagueness

Yeah, after I reread my statement, I don't think I made that very clear (maybe I'm void for vagueness, but I'm a lawyer, so did you expect something different? ). What I meant was that the law regarding the content of the sign is not particularly vague in my opinion. From that law, the three issues that would make it unconstitutional are fairly clear from the language of the statute.

[Guest Old goat]

I'm OK with the slashed sign myself, makes it easy see who doesn't want my $$$.