More on TN’s committing felonies while armed law
Says AC:
It would seem that Say Uncle’s concerns about a new gun law taking effect in January may be well founded.
He notes that attorney Nathan Moore has done an analysis of the law. Nathan concludes:
One aspect of the proposed change in the gun laws puzzles me, however, In amending TCA 39-17-1307, possessing a deadly weapon that is not a firearm in the commission of a “dangerous felony” as listed in the Crooks with Guns law is a standard Class E felony. That part makes sense, and would apply to knives, pool cues, baseball bats, etc. However, possessing a firearm in the commission, attempt to commit or escape from a non-dangerous “offense” (note, not felony) is a Class E felony. A Class E felony entails a one (1) to two (2) year sentence for a Range I offender. So, in essence, if you possess a firearm while committing the least serious misdemeanor, you could suffer a felony conviction (think Driving on a Suspended License because of unpaid tickets, or Criminal Trespass, both Class C Misdemeanors – and the way it is written, possessing a valid concealed carry permit wouldn’t matter a lick).
December 28th, 2007 at 6:47 pm
But think of how safe we will all be when EVERYONE’s in prison. /sarcasm
December 28th, 2007 at 9:43 pm
I think that this interpretation of your enhanced-penalty rule is incorrect. Possessing a valid CHL gives you what is known as an “affirmative defense” to any possession of concealed weapons charges arising out of such carriage (in lawful places, it wouldn’t protect you in a court building, for example), and also to any penalty enhancement.
The first such case to come before your Superior Court will probably be tossed on motion of the defense attorney, or definitely when it hits your Court of Appeals, because the law is a back-door way of removing a civil right (the right to an affirmative defense is an absolute right), and the courts aren’t supposed to allow these back doors to exist.
December 29th, 2007 at 1:43 pm
I think my analysis holds. that a concealed carry permit does not enable you to carry a gun and do something illegal. The new language in the statute simply expands what is illegal, in my view, beyond the bounds of rational public policy concerns. Surely the legislature didn’t mean what they ended up saying. Unfortunately, they said it.
And unfortunately, I have to disagree with the assertion that the courts will fix it, especially in Tennessee, where the court of appeals tends to interpret statutes quite literally and aren’t terribly activist, in either good or bad ways.
That being said, as soon as I get a client charged under this particular provision, I’ll be the first one challenging its constitutionality.
December 30th, 2007 at 1:58 am
My statement stands as well, unless you can show me language from the TN Constitution which prohibits affirmative defenses, or specific language in your CHL law which states that the law does NOT provide an affirmative defense.
Wouldn’t that be your first motion on such a criminal defense, Counselor? Tactics are also a part of criminal defense, as I was frequently reminded during my 25 years behind the badge. If a defense attorney was able to get a charge tossed at a Probable Cause hearing (because the PC didn’t match the law), then I was back to Square One in my investigation, but if that same attorney decided to go the Constitutional Challenge route, his client usually rotted in jail for years until the case finally hit the Court of Appeals (on a serious felony, of course).
Had I continued with the Pre-Law studies I started at the Mizzou “Law Barn”, I would have probably been a defense counsel. To me, their work is the most fascinating of all the branches of law.