HB 0995/SB 1171 Parks

[Oh Shoot]

Actually, federal law does not prohibit carry in all buildings within federal parks, does it?  My understanding is that the law only prohibits carry in buildings within the parks where/when federal workers are present, right?  Buildings where federal workers are not normally present (such as unstaffed restroom facilities, for example) are not off limits for carry, correct?  So, since (at least in my experience) most community centers do not have regular staff who are present during events held there then any precedent in federal law should go toward allowing, not prohibiting, carry.  Besides, aren't federal buildings still supposed to be posted in order for the prohibition to be enforced?  Under the new state law, however, postings on places such as community centers should hold no validity for permit holders.

 

All good points, and I didn't mean to equate the federal and state statues as in any way equal. Just showing how a dichotomy can exist like that, and TN is likely to be able to create one though case law, especially if a powerful county can judge shop for it or whatever.

 

And yes, I've often used the carry in federal buildings statute to contrast with 1359 when the "is this posting legal" discussions arise. Meaning, 1359 does NOT say that you NOT culpable for non-confirming signage, while the federal statute does indeed specifically say that.

 

- OS

[Oh Shoot]

The way I understand it under reciprocity with Georgia your permit would fall under Tennessee state laws/penalties while you are in this state.

I don't know if Tennessee can revoke it but I'm sure they would get Georgia to do it.....

 

I suppose they could report to GA and ask them to do it. Note that of course however TN statute only can only legally apply to TN HCPs, as it states.

 

- OS

[JayC]

In Nashville's case, these buildings are also administrated by the Parks department, so logic would say, the build sits entirely inside a designated park, the build is managed by the county/city parks department, therefore 1311 must apply ;)

 

Simplest way to find out, would be to get the parks department to tell you the centers are off limits, then have an organization such as TFA file a lawsuit to block enforcement as a violation under 39-17-1311.

 

I don't know which will prove to be under parks and which will not. Any place that sits entirely within the confines of a park "should be" under 1311 -- you'd think. Then again, you'd got federal law example where you can't carry in federal buildings completely within park boundaries, just as a juxtaposition of something similar.

 

Though the statues don't mention it, maybe will be argued under what division of the city/county a facility is administered may make a dif, who the frig knows. Some counties will have more pull than others to "tweak" the actual statutes, or at least think they will, who knows.  I just think it's going to mostly be a facility by facility hassle as time goes along. Obviously logic doesn't necessarily figure, especially with the weapons section of TCA enforcement, since as usual there are separate statutes that don't exactly jibe with each other.

 

Coliseums and sports arenas are generally not within park property, but most are certainly used mostly exclusively for recreational purposes. Would seem any that are even partially owned or managed by the city/county would fit into 1311, but I imagine these will be particularly heated bones of contention.

 

- OS

 

[JayC]

I'm going to run by one of these community centers and see if they have a legal 39-17-1359 posting ;)

 

All good points, and I didn't mean to equate the federal and state statues as in any way equal. Just showing how a dichotomy can exist like that, and TN is likely to be able to create one though case law, especially if a powerful county can judge shop for it or whatever.

 

And yes, I've often used the carry in federal buildings statute to contrast with 1359 when the "is this posting legal" discussions arise. Meaning, 1359 does NOT say that you NOT culpable for non-confirming signage, while the federal statute does indeed specifically say that.

 

- OS

[Guest Shooter00]

I suppose they could report to GA and ask them to do it. Note that of course however TN statute only can only legally apply to TN HCPs, as it states.

 

- OS

According to this reciprocity quote his Georgia permit would be treated as a Tennessee permit and fall under the same statutes. Yes/No ?

 

c.  A facially valid handgun permit, firearms permit, weapons permit or license issued by another state shall be valid in this state according to its terms and shall be treated as if it is a handgun permit issued by this state; provided, however, the provisions of this subsection (r) shall not be construed to authorize the holder of any out-of-state permit or license to carry, in this state, any firearm or weapon other than a handgun.

[monkeylizard]

I'm going to run by one of these community centers and see if they have a legal 39-17-1359 posting ;)

 

The ones I've seen in Nashville are posted under 1311 and specifically cite 1311, not 1359.

Edited April 28, 2015 by monkeylizard

[monkeylizard]

I disagree...

 

 

I don't see why. 1359 (f ) says "other similar public place" after it specifcially names public park, natural area, historic park, nature trail, campground, forest, greenway, waterway. A museum or community center is not similar to a park, greenway, natural area, etc, in my opinion. A judge may or may not agree. Who knows? This is all speculative on my part based on my own plain reading of 1359 (f ).

 

 

 

I agree there is no case law, but it's clear the legislative intent is for areas covered by 39-17-1311 to be exempt from 39-17-1359... Also, none of those locations are currently posted via 39-17-1359.

 

I think the argument you'll have for Community Centers is the fact they sit entirely within the confines of public parks in most cases in Metro Nashville... I can't see the government saying with a straight face the law says you can run around the entire park with a firearm, but can not access a building within that park because it's called a Community Center.

 

As OS said, the federal statutues show that such a dichotomy can exist so the building existing entirely in a park is probably irrelevant. I think you're on to something though about the facilities in question not being posted under 1359. Most that I've seen in Nashville are posted under 1311. If the city doesn't wise up, we'll be good to go, but I still think 1359 would apply to those facilities if they slap on some gunbusters or update the language on their signs to be in line with 1359. It will take someone being charged and subsequent case law to know for sure though, or another change to the laws, namely 1359 (f ) to include all property types listed in 1311.

Edited April 28, 2015 by monkeylizard

[Worriedman]

I still think you are going to see the Judge in Davidson County call this one "Constitutionally Vague" shortly.

[300winmag]

Most of those museums and community centers are located inside parks or similar public places.  I would guess you are probably legal but who knows.  I would still conceal to avoid any problems.  There are too many gray areas in this state for me to openly carry unless on my own property or a place like a gun range or out in the woods.

[SithL0rd]

So after feeling great about being able to carry in parks reality hit. The park closest to my house buts up against a elementary school that actually uses the playground as their playground. Then Overton Park has Memphis College of Art in it.

Guess at least I'm mostly legal now and since I always conceal shouldn't be a problem.

 

*fingers crossed*

 

obfuscate

verb ob·fus·cate \ˈäb-fə-ˌskāt; äb-ˈfəs-ˌkāt, əb-\

: to make (something) more difficult to understand

[monkeylizard]

Is a playground = athletic field? I wouldn't think so, but even if it is it would only make the playground and its immediate vicinity off limits while the school is using it. The rest of the park would be OK.

Edited April 28, 2015 by monkeylizard

[300winmag]

Memphis College of Art does not own Overton Park.  Memphis College of Art is a private school.  Overton Park is owned by the city of Memphis.  You should be legal carrying in Overton Park and the zoo.  If Overton Park was owned by the college, then I would say you couldn't carry in the park.

[TennFire]

The parks bill this year is yet another example of the Establishment Republicans (mainly those in or wanting to be in leadership) refusing to enact laws that meet the constitutional standards including the standard that a criminal law must be sufficiently clear so that the average person, the average law enforcement official, the average DA, the average judge and the average juror would all reasonably agree on what is or is not permissible conduct. 

 

The United States Supreme Court has decided numerous cases in which it discusses the "void for vagueness" doctrine.  Generally, the courts note that such legislation "may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused."    Constitutionally, people of common intelligence cannot be required to guess at the meaning of law, particularly a criminal code. 

For those of you who recall the litigation over the 2009 "restaurant" law, the trial court's decision to declare that act unconstitutional was based on this vagueness doctrine and, frankly, was the right decision in that instance.

Many would argue that the same is true for several of Tennessee's existing firearms related laws including specifically the parks and school grounds laws but also including many other laws such as the ones which define a loaded weapon to include an empty weapon if there is ammunition "in the vicinity", the definition of a machinegun, the definition of a firearm (which is much broader than the federal Gun Control Act definition), the interactions between the "restorations" statutes and the prohibited person state statutes, and the list goes on.
 

Here, while part of the problem is TCA 39-17-1311, the main culprit is 39-17-1309 and the refusal of the legislators to remove the word "used" from the definition of a school grounds.  Because of that simple term, even your personal residence could be classified as "school grounds" - with all the attendant weapons restrictions - if you allowed your home or property to be used for any school function, such as an end of the year party.

TFA is fighting these issues.  Part of the problem is sadly we are dealing with a divided Republican caucus in which the RINOs and Progressives control leadership.   Another huge problem is that there is at least one other organization (I am not talking about TGO) that has a presence at the legislature as a "pro 2nd Amendment advocate" that has approved numerous of these very poorly written bills over the last decade or so.

[LagerHead]

The parks bill this year is yet another example of the Establishment Republicans (mainly those in or wanting to be in leadership) refusing to enact laws that meet the constitutional standards including the standard that a criminal law must be sufficiently clear so that the average person, the average law enforcement official, the average DA, the average judge and the average juror would all reasonably agree on what is or is not permissible conduct. 
 
The United States Supreme Court has decided numerous cases in which it discusses the "void for vagueness" doctrine.  Generally, the courts note that such legislation "may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused."    Constitutionally, people of common intelligence cannot be required to guess at the meaning of law, particularly a criminal code. 

For those of you who recall the litigation over the 2009 "restaurant" law, the trial court's decision to declare that act unconstitutional was based on this vagueness doctrine and, frankly, was the right decision in that instance.

Many would argue that the same is true for several of Tennessee's existing firearms related laws including specifically the parks and school grounds laws but also including many other laws such as the ones which define a loaded weapon to include an empty weapon if there is ammunition "in the vicinity", the definition of a machinegun, the definition of a firearm (which is much broader than the federal Gun Control Act definition), the interactions between the "restorations" statutes and the prohibited person state statutes, and the list goes on.
 
Here, while part of the problem is TCA 39-17-1311, the main culprit is 39-17-1309 and the refusal of the legislators to remove the word "used" from the definition of a school grounds.  Because of that simple term, even your personal residence could be classified as "school grounds" - with all the attendant weapons restrictions - if you allowed your home or property to be used for any school function, such as an end of the year party.

TFA is fighting these issues.  Part of the problem is sadly we are dealing with a divided Republican caucus in which the RINOs and Progressives control leadership.   Another huge problem is that there is at least one other organization (I am not talking about TGO) that has a presence at the legislature as a "pro 2nd Amendment advocate" that has approved numerous of these very poorly written bills over the last decade or so.

I wonder why none of the existing laws, especially laws requiring a permit to carry, are ever challenged on the basis of the Tennessee Constitution itself, which clearly reads;
 

Section 26. That the citizens of this state have a right to keep and to bear
arms for their common defense; but the Legislature shall have power, by law, to
regulate the wearing of arms with a view to prevent crime.

Edited May 6, 2015 by LagerHead

[TennFire]

I wonder why none of the existing laws, especially laws requiring a permit to carry, are ever challenged on the basis of the Tennessee Constitution itself, which clearly reads;
 

 

 

 

There are a few reasons why the challenges have been limited, in my opinion:

 

• Cost.  Seldom do you find an individual who wants to bear this burden individually.  Similarly, although the NRA raises literally millions of dollars a year from its members in Tennessee, it has never to my knowledge taken on a case to challenge any existing statute in TN based on the constitutional language from the 1870s or even the 2nd Amendment.  It may have been involved in defending the 2009 restaurant law but that law did appear to violate the vagueness doctrine and was not tested against Article I, Section 26.  TFA has in recent years looked at a few cases and did get involved as an amicus in the Blackwell case.  TFA believes that part of what it should do as an advoacy group is to engage not just in the legislature but also in the court system when it can.  However, to do this, TFA must raise the funds through members and member donations since, as we all know, money does not grow on trees.
   
• Probability of success.  If you follow the various although limited rulings of the Tennessee Supreme Court on the application of the Tennessee constitution to statutory enactments, you will see a trend of construction by the court where every effort is made to find a way to interpret a law, any law, as constitutionally permissible.  Thus some of the challenges which have been brought relative to the firearms law have not met with success in terms of having those statutes declared unconstitutional.  You also have to consider the composition of the court (just like the US Supreme court) and make an educated, informed assessment of whether those specific judges have said or done things to make you think that they are "strict" constitutionalists.  If not, don't risk making things worse with a bad opinion.
   
• Opportunity.  To bring challenges someone has to have "standing" in a court.  Not everyone can sue to challenge a statute.  There must be some tangible harm or relevance to a specific individual or entity so that the dispute addressed to the court will focus on a specific, real instance and not just be an advisory ruling.  A second component of opportunity is that you cannot take a case up on "bad facts".  You have to have a clean set of facts where the individual(s) who can show standing are going to make "good plaintiffs".
   

So, while laws can be challenged, there are many practical (cost) and logistical factors to be weighed when deciding if and when and where to bring such an action.  In most instances, the route of legislative reform may be better but as the last 5 years have proven - don't bet on it.

[jbrownch]

Great couple of post "TennFire"... lots of thing to think about, and email our representatives about.

[phil1979]

Aren't city and county owned museums and community centers already covered under state preemption? If so, they don't need to be addressed in the new parks law.

 

If not, then where do they get the authority under state law to ban guns at those places?

 

 

Most of those museums and community centers are located inside parks or similar public places.  I would guess you are probably legal but who knows.  I would still conceal to avoid any problems.  There are too many gray areas in this state for me to openly carry unless on my own property or a place like a gun range or out in the woods.

[dawgdoc]

Aren't city and county owned museums and community centers already covered under state preemption? If so, they don't need to be addressed in the new parks law.

 

If not, then where do they get the authority under state law to ban guns at those places?

 

I think it might be 39-17-1313: 

 

 

 

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

  (a)  (1) Except as provided in § 39-17-1313, 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 who is at a meeting conducted by, or on property owned, operated, or managed or under the control of the individual, corporation, business entity or government entity.

[monkeylizard]

I think it might be 39-17-1313: 

 

Well, 1359, actually. 1359 section (d ) defers to 1311 for parks, greenways, etc., but makes no mention of deferring to it for places like museums, community centers, arenas, etc. That means, IMO, that such places could still be posted and carrying past the posting would be a violation of 1359, even though it's (probably) no longer a violation of 1311 since the recent law change. One could possibly argue, at least in some instances, that such places fall within a park and are part of a public park so 1359 would defer to 1311, but that's not always the case and may or may not hold sway with a judge even in those places where a normal person would think it would.

 

Others have a different opinion and read 1359(d )'s deferral to apply to all places listed in 1311. I personally don't see that, but to each his own.

Edited May 18, 2015 by monkeylizard

[Oh Shoot]

....

If not, then where do they get the authority under state law to ban guns at those places?

 

Only through 1359, same as your local diner.

 

- OS

[dawgdoc]

I'm always getting the numbers wrong, even when I have a second window open on Lexis-Nexis.  I meant to write 1359; I at least quoted the section I was trying to cite.

[macville]

Shockingly enough, the town of Farragut has already removed their no gun signs at the entrance of their parks. Kinda surprised since they couldn't get the wording of the signs right in the first place, but happy that they did so as not to confuse anyone.

[TennFire]

What the Tennessee Legislature has done is to create needless confusion and debate.  When that is done with respect to criminal statutes, such as these, it is inexcusable and likely unconstitutional under the vagueness doctrine.

 

Now, for a moment on local governments.  The state pre-emption statute is TCA 39-17-1314.  It prohibits any local regulation except as expressly permitted by any other statute.  Consequently, statutes like TCA 39-17-1359 allow local governments to post their properties (public buildings, civic centers, etc.) unless another statute, like TCA 39-17-1313 or TCA 39-17-1311, prohibits local regulation of some or all of the areas.  Clear, right?

Now, on the local parks topic.  

First, the "school grounds" statute (TCA 39-17-1309) is a big part of the problem. It contains this definition of school grounds:

 

 

TCA 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, explosive, explosive weapon, bowie knife, hawk bill knife, ice pick, dagger, slingshot, leaded cane, switchblade knife, blackjack, knuckles or any other weapon of like kind, not used solely for instructional or school-sanctioned ceremonial purposes, in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field or any other property owned, used or operated by any board of education, school, college or university board of trustees, regents or directors for the administration of any public or private educational institution.
 

(2) A violation of this subsection (b) is a Class E felony.

 

Under this language, the possession of any "weapon", including knives and firearms on "any ... property ... used" by a school is chargeable as a Class E felony. Understand that there is no time limit on "used" so it could be argued that if the property has ever been "used" for any school function then it might be classified as 'school property' for purposes of the felony charge.  This could include not just parks but movie theaters, bowling alleys, swimming pools, picnic grounds, museums, art centers, restaurants and even private homes that have been "used" for school approved events or parties.

So, part of the problem has been the definition of "school grounds" all along. However, this was not very well known until the Attorney General issued an opinion recently.  See, AG 14-88.  The AG opinion is accurate in some areas but the areas where he concluded that there is a time or geographic limit is unsupported by the statute and unsupported by any court decision reading such a limit into the statute.  So, worse case, if a school have ever used the property for any school function its permanently classified as "school grounds" and possession of any weapon on that property could be charged as a Class E felony even if you did not know the school had ever or was presently using the property.

Next we look at the parks statute, TCA 39-17-1311.  First, it is important to know that Sen. Green had a bill this year to delete the word "used" from the school grounds statute.  That bill was defeated by the Republican leadership in a subcommittee. 

Next, when the "parks bill" was being debated in conference, they specifically addressed the school issue.  They were aware of it and made the intentional choice by refusing to fix the problem but they may have actually made it worse.  How is it worse?  More confusion. 

Consider this.  The "parks statute" defines certain public areas, including but not limited to parks, as prohibited places.  This is the language from TCA 39-17-1311(a):

 

 

(a) It is an offense for any person to possess or carry, whether openly or concealed, with the intent to go armed, any weapon prohibited by § 39-17-1302(a), not used solely for instructional, display or sanctioned ceremonial purposes, in or on the grounds of any public park, playground, civic center or other building facility, area or property owned, used or operated by any municipal, county or state government, or instrumentality thereof, for recreational purposes.

 

Clearly, TCA 39-17-1311 defines a specific list of places and then ads any other places used for "recreational purposes."   The term "parks" is just one of the places but its in a list of other places suggesting that these are by some means or intent distinct from parks.  Weapons are prohibited in all of these places by state law even if there are no signs posted.  The majority report which became the "parks bill" in 2015 is pitifully written.  First, it uses a list of places that is different from the list in 39-17-1311(a).  Second, it uses a "morphing" concept where these properties covered by the 2015 amendment can suddenly turn into Class E felony traps - i.e., school grounds, at any point in time merely by having a school activity taking place (e.g., cross country runners, golf team, baseball practice/game, football, tennis, lacrosse, soccer, etc.).  Third, you get a "fair warning" to leave the property but only if you did not "know or should have known" about the school even.  Fourth, it covers the entire property - arguably - not just the specific area in which the event is taking place.  Fifth, it uses the term "vicinity" which potentially could extent outside the park boundaries and which has no defined meaning (10 feet, 100 feet, 150 feet, or what about the effective range of the firearms?).  Here is the language in the 2015 law:

 

 

(H)
(i) Persons possessing a handgun, who are authorized to carry the handgun pursuant to § 39-17-1351, while within or on a 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 of the state, a county, or municipality.

 

(ii) Subdivision (b)(1)(H)(i) shall not apply if the permit holder:

 

(a) Possessed a handgun in the immediate vicinity of property that was, at the time of possession, in use by any board of education, school, college or university board of trustees, regents, or directors for the administration of any public or private educational institution for the purpose of conducting an athletic event or other school-related activity on an athletic field, permanent or temporary, including but not limited to, a football or soccer field, tennis court, basketball court, track, running trail, Frisbee field, or similar multi-use field; and

 

(b) Knew or should have known the athletic activity or school-related activity described in subdivision (b)(1)(H)(a) was taking place on the property; or

 

(c) Failed to take reasonable steps to leave the area of the athletic event or school-related activity after being informed of or becoming aware of its use;

 

The Establishment Republicans in the legislature are unwilling to honor their oaths of office.  This particular disaster was manufacturered by Senator John Stevens who is a hand picked private for Lt. Gov. Ron Ramsey.  But, to accomplish this 2015 language he had the apparent full support of Senator Mike Bell (who reportedly shares an apartment from time to time with Lt. Gov. Ramsey) as well as Rep. Mike Harrison (who was in charge of House Finance Subcommittee in 2014 when the Open Carry law was defeated) and finally by Rep. Tilmon Goins.  I will add that Rep. Tilmon Goins had sponsored a better version of the parks bill this year but was apparently told by House leadership to back burner his bill because leadership wanted Rep. Harrison to get the credit for passing a gun bill after the attacks against him in 2014 for killing the open carry law.

Folks, defending our rights is not a spectator sport. It is not sufficient to engage these issues in internet forums and Facebook posts.  We have to be willing to speak out, to call out these legislators, to let them know - face to face - that they are doing wrong, and, when necessary to raise funding and set aside time to run against them or to support others (not  just in your district but anywhere in the state) to run against the RINOs and defeat them.  These problems will not go away so long as we have government leaders like Haslam, Harwell and Ramsey.   Those 3 convinced a majority of Tennesseans to vote to give up their rights to vote for one-third of state government (the judicial amendment in 2014), do you think they really care about the 2nd Amendment?

Edited May 18, 2015 by TennFire

[JReedEsq]

Shockingly enough, the town of Farragut has already removed their no gun signs at the entrance of their parks. Kinda surprised since they couldn't get the wording of the signs right in the first place, but happy that they did so as not to confuse anyone.

 

I was at Anchor Park just yesterday, and like you, I was very surprised to see the sign removed so quickly.  

[300winmag]

The legislature should have just listed a handgun carry permit among all the other present exemptions to both parks and school property.  School shooting teams, hunters, and armed guards already have this exemption and you can't tell me that handgun carry permit people are any less law abiding or qualified than armed guards or school shooting teams.

 

The legislature also could have fixed the no guns sign problem by changing it to a trespass issue instead of a weapons violation, but again did not fix that problem that affects not just handgun carry permit people but anyone such as armed guards servicing a location with a 'no guns' sign that complies with state law.  Are people declaring cased firearms inside the airport terminal breaking 39-17-1359 too?  It looks like they technically are if the airport has no guns signs up.

Edited May 18, 2015 by 300winmag