Clarification of "intent to go armed" with 39-17-1309

[JWKilgore]

Because of restrictions where I work, and because I have kids in school and often go to Chattanooga parks (no carrying allowed), I've long gotten out of the habit of carrying. I live and work in "safe" areas and got complacent. But the other day right in my driveway my dog was attacked by a pit bull that had gotten loose in the neighborhood, and there I was with nothing to defend my dog. Luckily it turned out mostly OK (the pit's owner ran up and helped, is paying the vet bills, and is giving the pit to a friend of his who lives in the country). But still, if my gun had been on my hip at the time maybe my dog wouldn't have a shaved neck and multiple stitches right now.

 

So now I'm back to carrying, and keep my gun either on me or locked in my vehicle while I'm at work. I park in a non-posted public garage, so my employer has no say and the new "guns in trunks" law doesn't apply. However, school starts in 3 weeks, so I'm looking at 39-17-1309 again.

 

39-17-1309

[b][1] "It is an offense for any person to possess or carry, whether openly or concealed, with the intent to go armed, any firearm [or anything else remotely dangerous] [on school property]..." 

[c][1]"It is an offense for any person to possess or carry, whether openly or concealed, any firearm [on school property]. It is not an offense under this subsection [c] for a nonstudent adult to possess a firearm, if the firearm is contained within a private vehicle operated by the adult and is not handled by the adult, or by any other person acting with the expressed or implied consent of the adult, while the vehicle is on school property."

 

The main differences between [b] and [c] are that there are no extra exceptions for [b] and [b] includes the phrase "with the intent to go armed". (NOTE: exceptions in [e] apply to both [b] and [c], but I meet none of those).

 

Paragraph [c] clearly allows me to bring an unloaded gun onto school property to pick up my son. The new "guns in trunks" law even clearly allows me to park the vehicle on school property and go inside the school, as long as the weapon is locked up before I get to the school (you aren't allowed to "handle" the gun on school property per 39-17-1309[c]).

 

 

My question is about what the phrase "with the intent to go armed" means. Obviously, by having a loaded weapon on my hip my intent is to be armed, but is that the legal definition of the phrase? Does having a loaded and easily accessible weapon make me automatically subject to [b]? Or does that phrase mean entering school property with the intent to use the weapon on school property (this is NOT the case with me)?

 

Assume I am on school property in the line of cars waiting to pick up / drop off my son. I am in the driver's seat, the vehicle may or may not be running, and I stay in the vehicle. Am I in violation of paragraph [b]:

 - if the gun is loaded and in an IWB holster on my hip? If I opened the door and stood up I would instantly be in violation of the law, but what if I just sit there?

 - if the gun is loaded and in an easily accessible "car holster"? Maybe between the seats, or under the dash.

 - if the gun is loaded and in a lock box? Say, I draw it from the holster and stash it there before pulling onto school property.

 

 

I'm well aware of all the disclaimers about using legal advice from this forum and the internet in general. But if I can get the meaning of that phrase down, then I will have a better idea about how to proceed. Thank you in advance,

 

Jason

 

Edited July 20, 2013 by JWKilgore

[Oh Shoot]

Carrying a loaded firearm in TN is always intent to go armed, simple as that, and TN law makes little distinction between having it on your person or within your vehicle.

 

An unloaded firearm with ammunition readily accessible/in immediate vicinity is same as loaded.

 

A loaded weapon in locked container is still obviously a loaded weapon and there is no exception for simply having it in a locked container.

 

There is an exception for picking up and dropping off passengers on school property, you may posses the firearm in whatever way you could legally possess it anywhere else.

 

Also, the new parking lot law exception is another exception, if in your own car with permit, and gun is not visible by "common observation".

 

Either of the last two should cover having loaded gun on you with permit on school property, as long as you don't have to get out of the car with it.

 

- OS

Edited July 20, 2013 by Oh Shoot

[RED333]

OS is spot on, I work at schools and keep mine locked up in the work van out of sight.

[JayC]

Yeah the one good thing out of the new parking lot bill is that you can now legally park your vehicle on school grounds, as long as your firearm remains hidden from view you're good to go (with a carry permit of course).

[JWKilgore]

Carrying a loaded firearm in TN is always intent to go armed, simple as that, and TN law makes little distinction between having it on your person or within your vehicle.

...

There is an exception for picking up and dropping off passengers on school property, you may posses the firearm in whatever way you could legally possess it anywhere else.

 

The second sentence quoted was what I used to think. If you were legally carrying in the street two blocks from the school you were still legal in the car line. But the law specifically states that the exception you're referring to only applies to paragraph [c], which is simply possessing a firearm. As I read it, and as you explained it, a loaded firearm means you have the intent to go armed, which brings up paragraph [b]. There is no exception to paragraph [b].

 

Realistically, I know that the chance of being found out and arrested for something like this is slim to none. Maybe if my kids told the wrong person (perhaps an over-zealous anti-gun administrator), but they know to not talk about that. But the fact is that a violation of [b] is a Felony which would result in me instantly losing my job. I guess I'll have to evaluate the risk of this violation vs. the risk to myself and my family by not being armed.

[JWKilgore]

39-17-1313. 

 [a]  Notwithstanding §§ 39-17-1309, 39-17-1311, or § 39-17-1359, unless expressly prohibited by federal law, the holder of a valid handgun carry permit recognized in Tennessee may transport and store a firearm or firearm ammunition in the permit holder’s privately-owned motor vehicle, as defined in § 55-1-103, while on or utilizing any public or private parking area if: 

 [1]  The permit holder’s vehicle is parked in a location where it is permitted to be; and 

 [2]  The firearm or ammunition being transported or stored in the vehicle: 

[A]  Is kept from ordinary observation if the permit holder is in the motor vehicle; or

[B]  Is kept from ordinary observation and locked within the trunk, glove box, or interior of the person’s privately owned motor vehicle or a container securely affixed to such vehicle if the permit holder is not in the vehicle.

 

 

 

Actually, this is the first time I've read the full text of SB 142 as passed. The text of the new 1313 doesn't differentiate between a loaded or unloaded weapon, says nothing about intent to go armed, and it specifically mentions that 1313 controls over 1309. I read that as of July 1 it's perfectly legal for me to have a loaded weapon in my vehicle (i.e., possession with the intent to go armed) on school property as long as I comply with all parts of 1313.

 

 

[Oh Shoot]

 

The second sentence quoted was what I used to think. If you were legally carrying in the street two blocks from the school you were still legal in the car line. But the law specifically states that the exception you're referring to only applies to paragraph [c], which is simply possessing a firearm. As I read it, and as you explained it, a loaded firearm means you have the intent to go armed, which brings up paragraph [b]. There is no exception to paragraph [b].

 

39-17-1310 specifically begins:

 

"It is an affirmative defense to prosecution under § 39-17-1309(a)-(d)...."

 

Unlike other minutiae in the weapons statutes,  I don't see how this one could be any plainer, and surely refutes your interpretation?

 

One could even argue that if you were picking up/dropping off and had a loaded heater on you without a permit, you'd not be culpable for 39-17-1309, only unlawful carry under 39-17-1307. Significant, since -1309 is a felony and -1307 a misdemeanor.

 

- OS

Edited July 21, 2013 by Oh Shoot

[JWKilgore]

 

39-17-1310.

Affirmative defense to carrying weapons on school property. 

It is an affirmative defense to prosecution under § 39-17-1309(a)-(d) that the person's behavior was in strict compliance with the requirements of one (1) of the following classifications:
...

(4) A person entering the property for the sole purpose of delivering or picking up passengers and who does not remove, utilize or allow to be removed or utilized any weapon from the vehicle.

 

 

Unlike other minutiae in the weapons statutes,  I don't see how this one could be any plainer, and surely refutes your interpretation?

 

One could even argue that if you were picking up/dropping off and had a loaded heater on you without a permit, you'd not be culpable for 39-17-1309, only unlawful carry under 39-17-1307. Significant, since -1309 is a felony and -1307 a misdemeanor.

 

- OS

 

I hadn't read -1310, although looking at the title now I don't see how I missed it. I was wrong, you were right, and this is why I'm not a lawyer. 

 

I realize there's a difference between an "affirmative defense" and "not illegal", but between -1310 and the new -1313 I'm now completely comfortable with having a loaded firearm in my vehicle while dropping off/picking up my kids.  :up:

 

Thanks for the help!

[Oh Shoot]

I realize there's a difference between an "affirmative defense" and "not illegal"....

 

Not sure there's a "not illegal" in all the weapons statutes, everything is an "exception" or "defense"....

 

That's the unfortunate result of what I see as the unconstitutional premise that carrying a loaded firearm is illegal to begin with in TN.

 

- OS

Edited July 21, 2013 by Oh Shoot

[JWKilgore]

Not sure there's a "not illegal" in all the weapons statutes, everything is an "exception" or "defense"....

 

As I understand it (again, I'm not a lawyer), an exception does mean not illegal. For example, -1309[e] lists several exceptions to [b] and [c]. As I read it, it is not illegal for police officers to possess a weapon with the intent to go armed on school property as long as it is in discharge of their official duties, and it is not illegal for me to possess an unloaded and legally stored firearm in my vehicle on school property (exception to [c]).

 

An affirmative defense means an act is still illegal and you can be arrested, charged, and tried, but you can use the affirmative defense to get the case dismissed or get a not guilty verdict. Whether you get that far or not depends on how clear and compelling your evidence is for your defense, along with possible political pressure on the prosecution. Also, with an affirmative defense the burden of proof is on the defendant. As an example, killing another human is illegal, but self defense can be argued as an affirmative defense. Zimmerman confessed to multiple crimes including discharging a weapon in city limits and homicide, but was able to use self defense as an affirmative defense to get a "not guilty" verdict.

 

Back to my specific case, I've done a lot of reading (helped immensely by your responses) since the time of my original post. If I have a loaded handgun in the car that is hidden from sight per -1313, then that is not illegal because -1313 says so. If my kid blabs to the wrong person and the police are waiting on me in the car line then they cannot arrest me as long as the weapon is hidden. On the other hand, if I'm stupid and leave a loaded handgun in full view on the passenger seat then -1313 does not apply and I am in direct violation of -1309[b]. If a teacher spots it and calls the police I can be arrested and tried, but I can use -1310 as an affirmative defense. I realize that in TN I would never get to trial because any decent lawyer would get the case dismissed, but many teachers are VERY anti-gun, and most people don't know about the allowances in -1309 and -1310. Many people, including many police officers, think ANY gun on school property should result in an immediate arrest. Therefore I will make d@mn sure my weapon is always out of sight.

Edited July 26, 2013 by JWKilgore