Clarification (Attorney or LEO Responses ONLY)

[Guest WyattEarp]

I did a search in this sub-forum and found nothing pertaining to my question (but if in my noob ignorance, I missed it, please forgive me if this is a re-post and/or has already been addressed).

But I was reading P.Stegall's thread on Legal Perspectives of self-defense (good read btw) when I noticed this curious little language at the very bottom.

http://www.tngunowners.com/forums/handgun-carry-self-defense/15780-legal-perspectives-use-deadly-force.html

There is an exception to this. Despite this language, you still get the protection of the self-defense law if you are carrying your firearm in a place where it is not allowed, such as a school, and you do actually use it in justifiable self-defense.

If you're carrying where it is prohibited, and you use your handgun in justifiable self-defense, does this prevent you from being prosecuted for violating the law/regulation that omitted lawful carry in this area/place? (i.e. park, restaurant, etc).

and if so, then why ban firearms at these places, if people are just going to carry and break the rules anyhow by carrying where they are not allowed to? I know the chances of ever having to use your firearm in self-defense are pretty low, so I don't understand this and I would like to know how it applies, and a better explanation/clarification if possible of the quote material.

I'm asking for either P. Stegall to weigh in on this or another attorney or LEO who knows the laws, and how they apply in this type of scenario, I do not want wild ass guesses or misinformation being thrown into this thread, so if you're not an attorney or LEO please do not reply.

[Guest BenderBendingRodriguez]

Let me start with the typical cautionary language that this is not legal advice, I'm not your attorney, if you would like legal advice, I would suggest that you hire an attorney, etc.

My understanding of the state of the law is that there is no actual legal protection for you if you are carrying your weapon in a posted area and have to use it (and get a "good" shot), but that there is a recognition of the public policy at play in having citizens properly defend themselves or others. In deference to these public policy concerns, a prosecutor may decline to prosecute for improper carry. The same analysis would come in to play if you were carrying without a permit.

Essentially, the quoted section is definitely not technically correct, but may or may not be practically correct depending on the specific circumstances at play. Of course, the prosecutor is not bound by anything which would prevent him or her from bringing charges, and it might not look very good in a civil trial (shows you can't/won't follow the rules), so the best bet is to always abide by all prohibitions against carry, be they by posting, federal law, state law, or otherwise.

Long story short: If you were truly justified in using your weapon, you probably will not be prosecuted if you have it someplace you're not supposed to have it (but you can be). If you are involved in a civil suit you won't have done yourself any favors by breaking the rules. If you get caught with it for some reason other than you had to use it, you're absolutely going to get in trouble. Follow the rules, man.

[Guest WyattEarp]

thanks for the reply Bender, I don't plan to carry where I'm not supposed to, I was just curious as to the legality of that statement and what it implied.

I do however wish our representatives in the Legislature would wake up and realize that banning the carry of firearms at city parks, and other such venues are more of a liability than they are a deterrent to gun crime. A mad man with a gun isn't going to care about a sign prohibiting firearms if he goes to a city park and starts offing people, but sadly the people at the city park will be powerless to do anything to stop it, because they can't carry and can't defend themselves or those around them.

[LawVol]

I do not practice criminal law and thus have no experience dealing with prosecutors and criminal court judges. But, I can look up statutes on Westlaw. The language you quoted probably refers to the statute that I have cited in full below:

§ 39-17-1322. Defenses to prosecution

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.

The "part" referenced in the statute is Part 13 of Title 39, Chapter 17 of the TCA. Part 13 pertains to weapons offenses/issues like possession, sales, etc. Part 13 is also where the carry permit statutes can be found. You can browse the entire TCA at Michie's Legal Resources. I'm not going to offer any interpretation of the statute, other than to say it seems fairly plainly worded.

For the "why" of the statute, you'd have to search for some legislative history. Alas, that's not within my westlaw subscription.

[Guest Tom Givens]

This law grew out of an incident here in Memphis in which a Good Samaritan saved another person's life with a handgun. The good guy had no permit (actually, this was before the current HCP statute) and was charged with Carrying a Pistol. Then State Senator Steve Cohen drafted and pushed through the bill referenced above.

[midtennchip]

Please review TCA 39-17-1322. I believe that is what Patrick was referring to in his post. Basically, if a handgun (note that the statute says handgun) is used in "justifiable self-defense" or "justifiable defense of [a victim]" during the commision of a crime, then the person possessing, displaying, or using the handgun cannot be convicted of a crime under Title 39, Chapter 17, Part 13 (i.e., the weapons possession provisions).

This is a tricky issue. We have a case here in Williamson County where a guy brandished an unloaded handgun on school property. The judge determined that his "use" or "display" of the gun was not in self-defense simply because the gun was not loaded. The judge admitted that, had the gun been loaded, the guy would not have been convicted of carrying on school property. There have been several discussions on the board regarding this case. The defendant's name was Tracey Clark.

While the law says you cannot be "convicted" (doesnt' say you cannot be charged or tried), the issue of "justified" is still a problem. Many people would say that whether the gun was loaded or not doesn't matter, but it certainly mattered in this case.

Edited March 1, 2011 by midtennchip

[Guest BenderBendingRodriguez]

Everyone who referenced 39-17-1322 is certainly right, and it was my careless skimming and forgetfulness that got me thinking that the ability to post signs prohibiting carry was found somewhere other than 39-17-xxxx.

This is a tricky issue. We have a case here in Williamson County where a guy brandished an unloaded handgun on school property. The judge determined that his "use" or "display" of the gun was not in self-defense simply because the gun was not loaded. The judge admitted that, had the gun been loaded, the guy would not have been convicted of carrying on school property. There have been several discussions on the board regarding this case. The defendant's name was Tracey Clark.

While the law says you cannot be "convicted" (doesnt' say you cannot be charged or tried), the issue of "justified" is still a problem. Many people would say that whether the gun was loaded or not doesn't matter, but it certainly mattered in this case.

This really does show the potential pitfalls always present when it comes to understanding and interpreting statutory law. It sounds like the judge was in a pretty tough spot, but probably made the correct decision, legally speaking. These are the same sorts of things that can get people in trouble when it comes to brandishing in non-posted areas (legal to carry) or firing warning shots. Not to mention the problems you run into if you're just caught carrying in a posted location and it wasn't because you tried to defend yourself/others, or the way you may be portrayed in a civil trial even if you get a "good" shot because you were carrying somewhere you weren't supposed to be.

The rules can be fairly byzantine, and obviously they confuse those of us in the profession more often that we'd care to admit; I don't know how anyone is really expected to get a good handle on all the ins and outs. The best advice in situations as literally life and death as this really is (and it certainly seems like it's your intent do act as such) to do what you can to stay within the bright lines of the rules, not hope to rely on exceptions that can fail at the drop of a hat, and don't be the guy that has to carve out new law to save his bacon.

[Guest WyattEarp]

Please review TCA 39-17-1322. I believe that is what Patrick was referring to in his post. Basically, if a handgun (note that the statute says handgun) is used in "justifiable self-defense" or "justifiable defense of [a victim]" during the commision of a crime, then the person possessing, displaying, or using the handgun cannot be convicted of a crime under Title 39, Chapter 17, Part 13 (i.e., the weapons possession provisions).

This is a tricky issue. We have a case here in Williamson County where a guy brandished an unloaded handgun on school property. The judge determined that his "use" or "display" of the gun was not in self-defense simply because the gun was not loaded. The judge admitted that, had the gun been loaded, the guy would not have been convicted of carrying on school property. There have been several discussions on the board regarding this case. The defendant's name was Tracey Clark.

While the law says you cannot be "convicted" (doesnt' say you cannot be charged or tried), the issue of "justified" is still a problem. Many people would say that whether the gun was loaded or not doesn't matter, but it certainly mattered in this case.

in regards to the case, was there some reason Mr. Clark was brandishing a firearm on school property? It would seem to me if he was just doing that to do it, then he would most definitely be in the wrong. But if there was an assailant with a gun, then I don't understand why he would brandish an unloaded firearm against someone who has a loaded gun? Seems there's an important piece of the story missing perhaps?

[midtennchip]

in regards to the case, was there some reason Mr. Clark was brandishing a firearm on school property? It would seem to me if he was just doing that to do it, then he would most definitely be in the wrong. But if there was an assailant with a gun, then I don't understand why he would brandish an unloaded firearm against someone who has a loaded gun? Seems there's an important piece of the story missing perhaps?

The facts of the case are stated in the Appeals Court decision below. Basically, another guy was angry over a youth basketball game and came at Clark with a knife. He retreated to his vehicle where I had an unloaded handgun. As I understand the facts, Clark pulled the gun out of the console of his truck and placed it on the seat of the truck in sight of the other guy. The decision below was only in regard to whether the case should have been dismissed before going to trial. In the trial that followed this decision, Clark was found guilty of unlawful possession on school property. The trial was a bench trial (just a judge, no jury) and the judge determined that, because the gun was unloaded, Clark was not using the gun in self-defense. I certainly understand the judge's thoughts on it, but I think reasonable minds could conclude that simply brandishing a gun (whether loaded or not) is an act of self-defense. But, as stated above, there is just a lot of gray area here.

http://www.tsc.state.tn.us/opinions/tcca/PDF/082/clarktopn.pdf

[Guest WyattEarp]

The facts of the case are stated in the Appeals Court decision below. Basically, another guy was angry over a youth basketball game and came at Clark with a knife. He retreated to his vehicle where I had an unloaded handgun. As I understand the facts, Clark pulled the gun out of the console of his truck and placed it on the seat of the truck in sight of the other guy. The decision below was only in regard to whether the case should have been dismissed before going to trial. In the trial that followed this decision, Clark was found guilty of unlawful possession on school property. The trial was a bench trial (just a judge, no jury) and the judge determined that, because the gun was unloaded, Clark was not using the gun in self-defense. I certainly understand the judge's thoughts on it, but I think reasonable minds could conclude that simply brandishing a gun (whether loaded or not) is an act of self-defense. But, as stated above, there is just a lot of gray area here.

http://www.tsc.state.tn.us/opinions/tcca/PDF/082/clarktopn.pdf

ah, now that makes much more sense...i knew there was something I wasn't seeing there.

that's interesting, you'd have thought that the sight of the firearm would have served as a deterrent to the individual with the knife from further aggression, and would lead to the situation being de-escalated and thus further harm/threat avoided

are you going to appeal the case?

[midtennchip]

ah, now that makes much more sense...i knew there was something I wasn't seeing there.

that's interesting, you'd have thought that the sight of the firearm would have served as a deterrent to the individual with the knife from further aggression, and would lead to the situation being de-escalated and thus further harm/threat avoided

are you going to appeal the case?

I don't represent Mr. Clark. When I said "we," I meant here in Williamson County. I know the attorney and, last I heard, he was planning on appealing. However, he moved to East Tennessee and I am not sure who picked up the appeal.

[Guest WyattEarp]

I don't represent Mr. Clark. When I said "we," I meant here in Williamson County. I know the attorney and, last I heard, he was planning on appealing. However, he moved to East Tennessee and I am not sure who picked up the appeal.

oh I see. I took it as your firm was representing him.

so the penalty for carrying in a venue/location/area where it says it's prohibited is a Class E Felony?

[Oh Shoot]

oh I see. I took it as your firm was representing him.

so the penalty for carrying in a venue/location/area where it says it's prohibited is a Class E Felony?

Penalties vary depending on location; only school property can be a felony.

Hell, only HCP holders can be charged with carrying past a sign in some situations, a criminal with no permit can't.

- OS

[Guest WyattEarp]

wow, that's insane. i just found the other part in the Legal section where it's a Class B Misdemeanor and $500 fine for carrying in other areas.

[Oh Shoot]

wow, that's insane. i just found the other part in the Legal section where it's a Class B Misdemeanor and $500 fine for carrying in other areas.

Except in posted parks, where you enter quintuple jeopardy and the scores can really change.

Ironies abound, for example a HCP holder is caught having one sip of an alcoholic drink in a bar while carrying, among other lumps, he loses his permit for 3 years. But someone without a permit could get arrested for illegal possession of a weapon AND carrying while intoxicated, and still be eligible for HCP immediately.

There is much bizarre logic in TN weapons laws, I encourage you to study up.

- OS

Edited March 2, 2011 by OhShoot

[Guest WyattEarp]

Except in posted parks, where you enter quintuple jeopardy and the scores can really change.

Ironies abound, for example a HCP holder is caught having one sip of an alcoholic drink in a bar while carrying, among other lumps, he loses his permit for 3 years. But someone without a permit could get arrested for illegal possession of a weapon AND carrying while intoxicated, and still be eligible for HCP immediately.

There is much bizarre logic in TN weapons laws, I encourage you to study up.

- OS

idefinitely will be studying up. thanks to all who replied.

[mikegideon]

Except in posted parks, where you enter quintuple jeopardy and the scores can really change.

Ironies abound, for example a HCP holder is caught having one sip of an alcoholic drink in a bar while carrying, among other lumps, he loses his permit for 3 years. But someone without a permit could get arrested for illegal possession of a weapon AND carrying while intoxicated, and still be eligible for HCP immediately.

There is much bizarre logic in TN weapons laws, I encourage you to study up.

- OS

Yep, there's a law against drinking while carrying, but none against drinking while making Tennessee laws.

[Oh Shoot]

Yep, there's a law against drinking while carrying, but none against drinking while making Tennessee laws.

I wish drunken legislators could be blamed, but seems it's more due to faulty logic circuits. Must be some recessive gene that causes that, along with the desire to run for office.

- OS

[Guest WyattEarp]

I wish drunken legislators could be blamed, but seems it's more due to faulty logic circuits. Must be some recessive gene that causes that, along with the desire to run for office.

- OS

i think they call that disease liberalism genetic dsyfunctional disorder..

[chances R]

i think they call that disease liberalism genetic dsyfunctional disorder..

That's good.....I believe I will borrow that from you and call it LDD for short:koolaid: