Do this, don’t do that
Reader Tim asks, re: the sign below, the following:
Would anyone take a position that the language of this firearm prohibition sign is substantially similar to that language specified by TCA 39-17-1359(a)? I would say it is NOT substantially similar and as such a person with a handgun carry permit could legally carry in this park. The following is the applicable TN Code:
39-17-1359. Prohibition at certain meetings — Posting notice. (a) 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 otherwise authorized by §§ 39-17-1351 — 39-17-1360, at meetings conducted by, or on property owned, operated, or managed or under the control of the individual, corporation, business entity or government entity. Notice of the prohibition shall be posted. Posted notices shall be displayed in prominent locations, including all entrances primarily used by persons entering the building, portion of the building or buildings where weapon possession is prohibited. If the possession of weapons is also prohibited on the premises of the property as well as within the confines of a building located on the property, the notice shall be posted at all entrances to the premises that are primarily used by persons entering the property. The notice shall be in English but a notice may also be posted in any language used by patrons, customers or persons who frequent the place where weapon possession is prohibited. In addition to the sign, notice may also include the international circle and slash symbolizing the prohibition of the item within the circle. The sign shall be of a size that is plainly visible to the average person entering the building, premises or property and shall contain language substantially similar to the following:
PURSUANT TO § 39-17-1359, THE OWNER/OPERATOR OF THIS PROPERTY HAS BANNED WEAPONS ON THIS PROPERTY, OR WITHIN THIS BUILDING OR THIS PORTION OF THIS BUILDING. FAILURE TO COMPLY WITH THIS PROHIBITION IS PUNISHABLE AS A CRIMINAL ACT UNDER STATE LAW AND MAY SUBJECT THE VIOLATOR TO A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS ($500).
March 31st, 2008 at 1:12 pm
This sign will be used as cause for prosecution of carrying a weapon in the park; however, it is likely that the prosecution will be unsuccessful (except in getting you arrested, making you post bond, losing you your CHL at least temporarily, and costing you $$$$ for an attorney).
This type of likely-to-fail prosecution was, and is, a common technique for gun control. It has been used by the DA in Houston, TX, who encouraged arrests and regularly prosecuted visitors to his fine city for carrying a firearm in their cars, despite the old Texas law allowing one to be armed while traveling. A more recent law, passed because of such legal PSH, defined travel more explicitly and was meant to eliminate such locality-to-locality legal differences. The Houston DA stated in a newspaper article that he intended to continue his prosecutions under the new law. I don’t know if he has or not.
I got my TX CHL in part because of such shenanigans.
March 31st, 2008 at 1:12 pm
Doesn’t TCA § 39-17-1311 generally prohibit carrying in parks whether there’s a posted notice or not?
March 31st, 2008 at 1:38 pm
Xrlq is right. Sign or no sign, it’s still illegal to carry in any state or city park. The sign is a courtesy.
March 31st, 2008 at 1:59 pm
TCA 39-17-1311 does not prohibit carrying a pistol in parks. This regulation states “(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)…” TCA 39-17-1302(a) lists specific weapons that are prohibited, such as machine guns, short barreled rifles, explosives, silencers, etc. 1302(a) does NOT prohibit handguns or rifles.
March 31st, 2008 at 3:00 pm
Sounds like what they try to do in Georgia as well. The big cities and the counties that contain them pass laws about not carrying into their parks, but state law has preempted them from doing it.
When told about it, some have repealed their ordinances. But Atlanta is one of those stubborn ones that is fighting it in court.
http://www.georgiacarry.org/cms/2008/03/26/atlanta-responds-to-gcos-motion-for-summary-judgment-in-parks-ban-case/
March 31st, 2008 at 4:13 pm
the above mentioned law mentions BUILDINGS specifically… i have to imagine that it wouldn’t apply outdoors anyways…
March 31st, 2008 at 4:39 pm
This question has come up before, and the Attorney General recently issued the following opinion:
http://www.attorneygeneral.state.tn.us/op/2008/OP/OP26.pdf
“…a question was raised concerningthe validity of that conclusion in light of language in Tenn. Code Ann. § 39-17-1311(a) that mightbe read to narrow the scope of the prohibitions that are imposed by the statute. That subsectionmakes specific reference to Tenn. Code Ann. § 39-17-1302, which prohibits the possession, usetransportation, manufacture, repair or sales of machine guns, short barrel rifles and shotguns,explosive devices, hoax devices, switchblade knives. If subsection (a) is read in isolation, it might be reasonable to construe Tenn. Code Ann. § 39-17-1311 as prohibiting the carrying of machineguns, short barrel rifles and shotguns and explosive devices, while permitting permit holders to carryhandguns on public parks, playgrounds, civic centers and other public recreational facilities.Reading Tenn. Code Ann. § 39-17-1311(a) in pari materia with subsection (b), however, it becomes clear that the legislature intended to prohibit permit holders from carrying their handguns, or anyother firearm, in public parks, playgrounds, civic centers and other recreational facilities, unless theholder’s conduct strictly conforms to one of the types of activity that is expressly permitted underTenn. Code § 39-17-1311(b)(1).”
March 31st, 2008 at 5:18 pm
For those of us less adept at reading law, what does this mean? I can’t carry when taking the dog to the dog park?
March 31st, 2008 at 5:46 pm
Correct.
This is why Jimmy Naifeh sucks.
March 31st, 2008 at 6:55 pm
Thanks wizardpc – however, the AGs argument about reading the regulations “in pari materia” would go against this interpretation if 1302(a) is also read “in pari materia.”
When considering 1311(b), it is clear that 1311(b) does not apply to me. Therefore the provisions of 1311(a) would apply to me. 1311(a) only prohibits those weapons defined by 1302(a). 1302(a) does not include handguns.
While I am not a lawyer, it appears that the AG has taken a “political” reading of the regulations rather than a strict factual reading. Yes, I could see a prosecution here, but a good defense lawyer would hand them their ass.
March 31st, 2008 at 7:18 pm
Well, then let’s do that. I agree that the law (1311) is both poorly worded AND stupid. As long as Naifeh is in power, this will never be corrected via the legislature. If we go about it like Heller, especially in the current climate, I suspect that the courts would declare that 1311 does NOT apply to Handgun Carry Permit holders.
Unlike Heller, though, someone would have to be arrested and charged under 1311 in order for this course of action to proceed. I am personally unwilling to do that myself, however I will donate time and money to that cause. I’m not a lawyer either, and you would want a good defense attorney lined up before proceeding, jus like Heller did.
Please forgive any spelling/typographical errors–I wrote this on my phone.
March 31st, 2008 at 8:21 pm
OMG! Uncle, your job is to summarize what these threats to liberties mean in plain language. I bet there were thousands of pages of german laws that justified concentration camps in the eyes of the law, but they were still wrong.
March 31st, 2008 at 10:53 pm
Red Dog, you may be right but if you test the theory, you’d better be right. I read the AG’s opinion as one-fourth political and three-fourths “the legislature screwed the pooch on this one, so we’re going to try to apply the law they probably meant to pass, rather than the meaningless turkey the actually did pass.”