TN AG: Cities can ban firing weapons

[Guest 6.8 AR]

Now, if they'll only tell the criminals it is illegal to discharge a firearm within city limits.
I can see the crime rate increasing in Palmyra, already.

[Pain103]

You realize violating a city ordinance is a fineable civil offense not a criminal offense. No record or arrest. It is similar to receiving a citation for a codes violation like uncut grass. The only way you could be arrested for municipal code violation would be refusing to sign the citation. Edited August 28, 2013 by Pain103

[DaveTN]

 

The "story" is, now a City or County can make the discharge of a weapon a crime, the State cannot preempt even the use for personal defense under 39-11-611 according to Cooper's Opinion.  Not that a judicial review might not set that opinion aside, who wants to go before a Judge to find out. 39-17-1322 got gutted last year in an appellate decision, which deletes the "shall not be charged with" language and completely reads it out of the statute.
 

When have you ever heard of a person that was ruled justified in using deadly force charged with discharging a firearm in the city limits? They would have to claim that a city ordinance trumps the state laws on the use of deadly force and a 1322 defense.

[Guest PapaB]

When have you ever heard of a person that was ruled justified in using deadly force charged with discharging a firearm in the city limits? They would have to claim that a city ordinance trumps the state laws on the use of deadly force and a 1322 defense.

1322 says

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 violation wouldn't be under that part, it would be under a local law. The AG seems to be telling municipalities that they can circumvent State law with local laws banning the discharge of weapons. Because State law doesn't actually exist in that area they wouldn't be trumping anything.

 

We need to get the State to fix this before it becomes a mess. While they're at it, let's try to get them to block all local ordinances affecting carry (as in parks etc.). IMHO municipalities shouldn't be allowed to regulate a fundamental right enumerated in the State Constitution.

Edited August 28, 2013 by PapaB

[Oh Shoot]

You realize violating a city ordinance is a fineable civil offense not a criminal offense. No record or arrest. It is similar to receiving a citation for a codes violation like uncut grass. The only way you could be arrested for municipal code violation would be refusing to sign the citation.

 

Not sure any of that statement is very accurate.  Knoxville's default on ordinances is up to 30 days jail time, some are considered misdemeanors.

 

If you are arrested, I don't see how you could claim there's no record of arrest. Carry in a municipal park comes to mind, to relate it to this discussion -- in Knoxville that is banned by city ordinance, and I don't think a city cop is just gonna write you a ticket and let you toddle off still carrying your heater here.

 

- OS

Edited August 28, 2013 by Oh Shoot

[Lumber_Jack]

Knoxville takes it to heart, bans firing air rifles too. Also, no indoor shooting ranges in city limits either.

- OS

Johnson City not only ban the USE of air rifles, but also the sale thereof.

[Oh Shoot]

Johnson City not only ban the USE of air rifles, but also the sale thereof.

 

Wow. But you can buy an actual firearm in city limits, right?

 

- OS

[Lumber_Jack]

Wow. But you can buy an actual firearm in city limits, right?

- OS

Yep, just not those evil air rifles. Apparently the ordinance dates back to the 80s. Never really figured the real reason why though.

[Worriedman]

When have you ever heard of a person that was ruled justified in using deadly force charged with discharging a firearm in the city limits? They would have to claim that a city ordinance trumps the state laws on the use of deadly force and a 1322 defense.

Have not, until now.  However, would not put it past one of the more Liberal Cities, or under this new Opinion, Counties to set up such a situation, as it appears now in their purvey to do so.

[Worriedman]

Evidently it has been a problem in other states, AZ, WA  and FL have legislatively addressed the issue.  From the Opinion:

 

 

By the plain language of Tenn. Code Ann. § 39-17-1314(a), the General Assembly removed from local governments the authority to regulate the “transfer, ownership, possession or transportation” of firearms, except as specifically provided therein. The statute’s failure to include any reference to the discharge of firearms, or otherwise indicate its intent to occupy the entire field of firearms regulation, supports an inference that the General Assembly intentionally excluded that area from the preemption statute. Compare Tenn. Code Ann. § 39-17-1314(a) with Ariz. Rev. Stat. Ann. § 13-3108 (“Except as provided in subsection F of this section, a political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms.”) (emphasis added); Fla. Stat. Ann. § 790.33 (“[t]he Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances.”) (emphasis added) and Wash. Rev. Code Ann. § 9.41.290 (“The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms.”) (emphasis added).

[Fallguy]

The city I live in has an ordnance against the discharge of firearms for as long as I can remember.

 

11-503. Weapons and firearms generally. It shall be unlawful for any

unauthorized person to discharge a firearm within the municipality. (1970

Code, § 10-212, modified)

http://www.mtas.utk.edu/public/municodesweb.nsf/5cde681dbdedc10f8525664000615fc4/a28d9b2efe39f1ce85256c6300633ad6?OpenDocument&Highlight=0,parsons

 

can remember But opinion says the ordnance can't prohibit the discharge of firearms that would be allowed by other parts of state law.

 

The AG doesn't cite the entire AZ law http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/13/03108.htm&Title=13&DocType=ARS

 

13-3108. Firearms regulated by state; state preemption; violation; classification; definition

A. Except as provided in subsection F of this section, a political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms or ammunition or any firearm or ammunition components or related accessories in this state.

 

F. This section does not prohibit a political subdivision of this state from enacting and enforcing any ordinance or rule pursuant to state law or relating to any of the following:

 

5. Limiting or prohibiting the discharge of firearms in parks and preserves except:

(a) As allowed pursuant to chapter 4 of this title.

(b) On a properly supervised range as defined in section 13-3107.

(c) In an area approved as a hunting area by the Arizona game and fish department. Any such area may be closed when deemed unsafe by the director of the Arizona game and fish department.

(d) To control nuisance wildlife by permit from the Arizona game and fish department or the United States fish and wildlife service.

(e) By special permit of the chief law enforcement officer of the political subdivision.

(f) As required by an animal control officer in performing duties specified in section 9-499.04 and title 11, chapter 7, article 6.

(g) In self-defense or defense of another person against an animal attack if a reasonable person would believe that deadly physical force against the animal is immediately necessary and reasonable under the circumstances to protect oneself or the other person.

 

The way I read it a City in AZ can have an ordnance against the discharge of a firearm so long as is doesn't criminalize any of the acts in 13-3108(F)(5)

 

Like many TN firearms laws, it is something really needs to be cleaned  up.

[Q-tip]

Maybe we could get TN to copy the MS preemption law. Local governments cannot regulate the discharge of air guns and shotguns on private property more than 10 acres and more than 150 (I think) feet of an occupied dwelling, or more than 50 acres for center- and rim-fire guns. 

[Oh Shoot]

Maybe we could get TN to copy the MS preemption law. Local governments cannot regulate the discharge of air guns and shotguns on private property more than 10 acres and more than 150 (I think) feet of an occupied dwelling, or more than 50 acres for center- and rim-fire guns. 

 

Yeah, like lots of people have 10-50 acre plots inside city limits.

 

- OS

[Q-tip]

Yeah, like lots of people have 10-50 acre plots inside city limits.

- OS

They don't, but it sure hinders county regulation.

[wjh2657]

In my 70 years I have lived in many cities in all parts of the country. Not one of those cities allowed the discharge of a firearm in city limits. What's new?

[Worriedman]

In my 70 years I have lived in many cities in all parts of the country. Not one of those cities allowed the discharge of a firearm in city limits. What's new?

If some of those cities you lived in were in TN, you could not have been charged with a crime IF you discharged a weapon in justifiable self defense since the change to the TCA which allowed self defense (39-17-1322).  This opinion places the city above the State with respect to the issue.

[Fallguy]

If some of those cities you lived in were in TN, you could not have been charged with a crime IF you discharged a weapon in justifiable self defense since the change to the TCA which allowed self defense (39-17-1322).  This opinion places the city above the State with respect to the issue.

 

Well guess you could still technically be charged with a violation of the city ordnance no matter the reason, unless there is an exception in the ordnance.

 

But I have to say, I too thought it was pretty much a standard that every incorparated city had an ordnance against the discharge of firearms.

[Worriedman]

The State TCA preempted any City code, but now with the new "Opinion" judges may see it differently.  Other states have a full preemption for that very reason, I suspect we will need one now as well. 39-17-1322 was a defense IF the discharge was involved in a self defense act, not so much now.

What if the event takes place inside your Castle?  Could you be charged for firing a weapon to save your life in a home invasion if you live inside the City Limits?  Kind of limits the enjoyment of Article 1 Section 26 does it not? 

Would this set aside citizen's arrest rules in a city that had rules against firearms discharge?

 

39-11-621.  Use of deadly force by private citizen.

  A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, §§ 39-11-611 and 39-11-612.

I read nothing that says "except in a City that has rules against discharging a weapon."

Edited September 3, 2013 by Worriedman

[DaveTN]

I have to say… We have pretty good gun laws in this state because we argue an awful lot about stuff that has never happened and probably never will happen.

 

Our state does not need to copy any other states laws; we are at a point where our next step needs to be Constitutional carry.

 

[Oh Shoot]

The State TCA preempted any City code,...

 

Only those enacted after 4/8/86.

 

Lots of city/county laws have been on the books for a lot longer than that.

 

That's why you can't carry in Knoxville parks, yet they don't have to post them either. You just have to "know" -- ignorance of the law no excuse and all.

 

- OS

Edited September 4, 2013 by Oh Shoot

[Worriedman]

I have to say… We have pretty good gun laws in this state because we argue an awful lot about stuff that has never happened and probably never will happen.

 

Our state does not need to copy any other states laws; we are at a point where our next step needs to be Constitutional carry.

I do not trust Nashville, Knoxville or Memphis, Davidson, Knox or Shelby County (legislator that asked for the opinion was from Knox County I believe)to not pass an ordinance allowing only Law Enforcement to discharge weapons.  Prior to this opinion, I would not have imagined that they would have.

As for Constitutional Carry, you can forget that as long as Haslam is Governor and the Speakers of the House and Senate remain the same.

Edited September 4, 2013 by Worriedman

[Worriedman]

Only those enacted after 4/8/86.

 

Lots of city/county laws have been on the books for a lot longer than that.

 

That's why you can't carry in Knoxville parks, yet they don't have to post them either. You just have to "know" -- ignorance of the law no excuse and all.

 

- OS

Correct me if I am wrong, but even though you could not legally carry in a Knoxville park, if you fired a weapon in justified self defense, you could not be charged prior to now for that action, or do I err in my understanding?

Edited September 4, 2013 by Worriedman

[Oh Shoot]

Correct me if I am wrong, but even though you could not legally carry in a Knoxville park, if you fired a weapon in justified self defense, you could not be charged prior to now for that action, or do I err in my understanding?

 

You could always be charged under the Knoxville city ordinances for firearm possession in a city recreational area and for discharging the firearm in city limits, regardless of other circumstances, since they were enacted pre-1986, and the fact that 39-17-1322 only gives you an out for state weapons laws under the 13x section, doesn't have anything to do with county or city ordinances. Don't see that the ruling under discussion changes anything here.

 

Seems to me AG is right though as to the letter of the law,  as 39-17-1314 does not mention actually discharging a firearm. Meaning would seem only the acts mentioned in 1314 can not be legislated locally after the cutoff date.

 

"...no city, county, or metropolitan government shall occupy any part of the field of regulation of the transfer, ownership, possession or transportation of firearms, ammunition or components of firearms or combinations thereof; provided, that this section shall be prospective only and shall not affect the validity of any ordinance or resolution lawfully enacted before April 8, 1986."

 

Which to me seems to leave the act of discharging a weapon in city or county limits still up to those entities, and any city or county could enact a brand new law banning such, if they don't already have one.

 

- OS

Edited September 4, 2013 by Oh Shoot

[Worriedman]

 

Which to me seems to leave the act of discharging a weapon in city or county limits still up to those entities, and any city or county could enact a brand new law banning such, if they don't already have one.

 

- OS

You are correct, which would in effect render 39-11-611 moot.

Edited September 4, 2013 by Worriedman

[Oh Shoot]

You are correct, which would in effect render 39-11-611 moot.

 

If say Knoxville wanted to charge someone for carrying in a park or discharging a firearm while in the act of a justified self defense, I see no reason why it couldn't -- but I imagine it would make for rather embarrassing press.

 

But if they charged someone for discharging a firearm during justified self defense within their home, it would become a national laughingstock.

 

- OS