A recent AG opinion and my response
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  1. #1
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    A recent AG opinion and my response

    A few weeks ago I asked my state rep to submit some questions about various weapons laws to the Attorney General, he did. Let me say...my rep. changed up my wording of the questions a little (after my approval) but then the AG even changed them up a little more on his opinion, but what I wanted to know was still in there.

    To be honest...I didn't totally agree with all of the AG's answers to the questions. So yesterday I sent an e-mail back to my state rep. about my thoughts and opinions on the answers. Haven't heard back from him yet.

    I would like your thoughts and ideas as well.

    (Warning...my repsponse to my Rep. was a little long....

    Link to TN AG Opinon No. 07-148

    My response....

    Representative McDaniel,

    First I would like to again thank you and Ms. Walden for the help you provided in submitting the questions for me to the Attorney General.

    I’m not sure what, if any, recourse there is if someone disagrees with an Attorney General’s opinion. I also admit my skills at reading and interpreting the law are much less than yours and the Attorney General’s. However, I would like to discuss some of the answer received in the Attorney General’s Opinion Number 07-148

    The reason for questions 1 and 3 are that both T.C.A. § 39-17-1306 and T.C.A. § 39-17-1311 neither specifically mention a handgun being banned from the locations in the two statutes. But rather a list of weapons enumerated in T.C.A. § 39-17-1302(a), of which a handgun or long barrel rifle or shotgun (firearms) are not mentioned. Other statutes such as T.C.A. § 39-17-1305 and T.C.A. § 39-17-1309 both use the term “firearm” as being prohibited at the locations in the those statutes rather than referring to T.C.A. § 39-17-1302(a). T.C.A. § 39-17-1307 uses the term “firearm” as an unlawful weapon to carry. Statutes T.C.A. § 39-17-1319 and T.C.A. § 39-17-13-1321 even use the term “handgun” to address the item illegal to posses in those statutes. So it would seem to me if the intent was to ban handguns or firearms in general, from the locations in T.C.A. § 39-17-1306 and T.C.A. § 39-17-1311 the terms handguns and/or firearms would have been used rather than referring to T.C.A. § 39-17-1302(a) and that as written the two statutes are somewhat confusing when compared to the others.

    On question number 1 though…I would agree that the general public does not need to go armed in to a room where judicial proceeding are taking place. It can be a highly emotional place where peoples on opposite sides of an issue can be in close proximity to each other. I would say that T.C.A. § 39-17-1306(a) may need to amended to be more clear on handguns and/or firearms.

    On question number 3…I do not see the need to prevent someone that has gone through the requirements of T.C.A. § 39-17-1351 from going armed and being able to defend themselves in the places listed in T.C.A. § 39-17-1311. If T.C.A. § 39-17-1311(a) was to be amended to specifically prevent handguns and/or firearms from being carried onto the locations in the statute, I would like to see T.C.A. § 39-17-1311(b)(1) amended to add those with a handgun permit issued under T.C.A. § 39-17-1351 to the list of people that T.C.A. § 39-17-1311(a) does not apply to. I admit I’m not sure how that would affect T.C.A. § 39-17-1311(c)(1) or what would need to be done. It is also my understanding you have already been contacted by another person that does not agree with the Attorney General’s opinion on this matter, he may have had a much more reasonable and compelling point of view.

    On questions 5 and 6…I do think that I reasonably understand the trespass law in T.C.A. § 39-14-405. Also while maybe not legally, I feel, in general there is a difference between private property such as one’s home or personal property and private property that is open to the public such as a convince store or shopping center. However I would say though in light of the Attorney General’s Opinion on these two questions, it renders the requirements of a property owner to ban weapons on their property under T.C.A. § 39-17-1359 moot. If a property owner can simply tell you, “I don’t want you to come back in here armed.” why would he need to post a sign under T.C.A. § 39-17-1359? Also if you look at the analysis to question 1 in Attorney General’s Opinion number 07-43 it says, “Owners of private property may prohibit the possession of handguns and other weapons on their property. To be effective, the owner must post a written notice that satisfies the requirements of Tenn. Code Ann. T.C.A. § 39-17-1359(a)” Also in referring to a property owners rights the Attorney General references cases several court cases (which I can not research). I would say though that a property owner, especially one with property open to the public, does not have absolute control over his property. I’m sure there are property owners that would like to allow smoking on their premises, but now, by state law, they can not. So it is possible for the legislature to regulate the owner’s use of his private property. In some states the property owner of a location that is open to the public can not prohibit someone who is legally armed from entering their property. I’m not sure if TN needs to go that far, but rather if the only reason a property owner doesn’t want someone armed on their property that they must post a sign under T.C.A. § 39-17-1359(a) for all to see.

    On question 7…I admit this is probably a rather small point overall. I would guess most property owners would ban weapons entirely or not at all as opposed to worn in a certain manner. However, if the property owner does not intended to ban weapons on his property I don’t think he should be allowed to determine the personal choice of the permit holder on how to carry his handgun. Again as in the paragraph above I would say a property owner does not have absolute control over his property. What if a property owner (open the public) told people, “You must wear your shirt tucked in to enter here.” Or “I do not allow people with brown hair to shop here.” While legally a property owner may be able to that, I don’t think it would generally accepted as proper by people. I understand schools have dress codes and some restaurants can make clothing requirements. However to not obey those are a violation of policy and not law.

    Thank you for taking the time to read my opinions and thoughts on the above. I would truly love to hear any idea, opinion or thoughts you have on the Attorney General’s Opinion or on my thoughts and opinions.

    Also, while are discussing laws pertaining to handguns. What is your opinion on amending T.C.A. § 39-17-1305 to where places like restaurants were not included in the statute? It is already illegal for someone to posses a handgun and be intoxicated, T.C.A. § 39-17-1321. I also agree that there is not a compelling need for the public to go armed into a “tavern”, “nightclub” or places of the like. However as it is now a permit holder can not go into any restaurant if it serves alcohol for onsite consumption, even if the permit holder is not consuming any alcohol. Some restaurants have a separate bar area (the even get a separate score from the TN Dept. of Health), the bar area of those restaurants could still be off limits. I would say it is even possible if a person has not been to a restaurant previously they may not even know if they serve alcohol and could find themselves in violation of the law with no intent. Let’s take Sparky’s in Lexington for example, they serve alcohol, so as it is now, a permit holder can not carry in there. But if they didn’t serve alcohol they could. As long as the permit holder is not consuming alcohol himself, what is the difference whether the restaurant serves alcohol or not? I know bills like this have been introduced before and I remember seeing a news segment where Speaker Naifeh was asking how was the restaurant worker supposed to know if customer was armed or not if the customer was to order some alcohol. I would say the restaurant worker doesn’t necessarily have to know. How do they know now? Again I would say anyone that has gone through the requirements of T.C.A. § 39-17-1351 to be able to carry a handgun can be trusted to obey the law as much if not more than the general public, at least when it comes to firearms. What prevents the general public or a permit holder from going armed in to places already off limits? I would say the persons desire to not violate the law. A permit holder, to me, even has a great incentive to not violate the law in these cases in that in addition to any punishment for violating the statute he/she could loose their permit and the right to carry. I know Speaker Naifeh doesn’t necessarily care what other states do when it comes to the law, but did you know some states, such as Virginia, simply do not allowed concealed carry in places such as those in T.C.A. § 39-17-1305 but they do allow open carry. That way people do know who is armed and who isn’t. However, even though it is legal in TN and practiced by some, since open carry is not common in TN, I’m not sure that would be the best solution.

    Ok…I have taken enough of your time and this letter has become longer than I intended. Again thank you for all your help and time. Having meet and talked with you a couple of times in person and corresponding via e-mail, you have made me truly feel as if my opinion matters to you and that you care. That is greatly appreciated.


    Respectfully,

    Steve Fall

  2.   
  3. #2
    Hey, thanks for taking the time to write this. I am sure you will, but please let us know what his response is. I have all but given up on hearing an answer to my letter to the Department of Safety. Thanks for getting us this information. I truly appreciate what you have done.
    David

    The only person available to protect you 24 hours a day is you.

  4. #3
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    No problem David. ...and yes, I will update everyone when I hear back.

  5. #4
    Great! Thanks a ton, and keep the updates coming. Lucky for you, your representative is easily accessible. I have Ophelia "Whatchu sayin' ain't hittin' on nertin' wurf me" Ford. As you might expect, even the most ordinary of requests go ignored.
    Victory rewards not the army that fires the most rounds, but who is the more accurate shot. ---Unknown

  6. #5
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    Update

    Got a call form Rep. McDaniel's office today. He has been in contact with John Harris, a lawyer in Nashville and the director of Tennessee Firearms Association. Mr. Harris is the person that first contacted Rep. McDaniel about the AG opinion when it was issued. Rep. McDaniel forwarded my e-mail to Mr. Harris and Mr. Harris is supposed to contact me and I guess we'll go from there.

    It seems Mr. Harris' opinion and mine are simillar in that all the TN laws about weapons, permits, etc... need to be reworked.

    When ever there is more I'll let you know.
    Last edited by Fallguy; 11-25-2007 at 04:33 PM.
    “Because when seconds count, the police are only minutes away”

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  7. #6
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    After reading some discussion on a few forums and some thought on my part. I had some additional problems with the answers to questions 5 & 6 of the opinion. Here is a copy of another e-mail I sent to my Rep.

    Representative McDaniel,

    After some further thought there is another issue I would like to address in Attorney General’s Opinion No. 07-148 in reference to questions/answers 5 & 6.

    Prior to July 1, 2000 T.C.A. § 39-17-1359(a) stated, in part that a property owner could announce his intention to ban weapons on his property. To my knowledge what “announce” meant was never legally defined. However in 2000 the legislator amended the statute and removed the announce provision. Now the statute says, in part…”Notice of the prohibition shall be posted.”

    It would seem to me Attorney General’s answers that a property owner can simply verbally tell a person, he is banned from the property if he is armed, would be in conflict with T.C.A. § 39-17-1359(a) especially after being amended July 1, 2000 to remove the announce wording.

    Again thank you for your attention and feel free to forward this message to Mr. Harris. I would like to hear his opinion as well.


    Respectfully,
    Steve Fall
    “Because when seconds count, the police are only minutes away”

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  8. #7
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    Follow up

    For those interested here is an exhange...

    ----------------------------
    From: John Harris [mailto:[email protected]]
    Sent: Monday, November 26, 2007 2:09 PM
    To: Sharon Walden
    Subject: Re: Further thoughts on AG Opinion 07-148



    Mr. Fall's question addresses what may seem to be a conflict in the law but in reality is not.

    The original posting law addressed "post or announce" and existed in addition to the similar but distinct law of criminal trespass. Under the version of 39-17-1359 which existed, an "announcement" could be made in many ways which often did not require actual notice such as TWRA announcing its position in hunter guides which a hiker or camper may not see. Thus, TFA lobbied for and removed the "announcement" provision and the law was changed to require actual posting of the property.

    Mr. Fall's concern is that this amendment may limit the property owner's ability to rely on criminal trespass. It does not be criminal trespass requires actual notice to the individual, which may be verbal, but in all instances actual notice is required.

    John Harris

    Executive Director
    Tennessee Firearms Association, Inc.
    ---------------------------------------------------------------

    ----- Original Message -----
    From: Steve Fall
    To: [email protected]
    Sent: Monday, November 26, 2007 3:58 PM
    Subject: Your correspondence Ref: T.C.A. 39-17-1359 and AG opinion 07-148


    Mr. Harris,

    Ms. Walden of Rep. Steve McDaniel's office forwarded me your e-mail about my latest question. If you don't mind I would like to clarify something. My main concern is that the property owner can prohibit all future entrance onto their property by simply saying once, "Never come back as long as you are armed." Are you saying that in absence of sign under T.C.A. 39-17-1359 that he would have to tell you every time to leave and not be able to make such all encompassing statement?

    To be honest, if it is a property owners intention to ban weapons I want him to have to post a sign for all to see so that even those that may not carry know this persons does not support the rights of those who do carry.

    Thank you for your time in this matter.

    Respectfully,
    Steve Fall
    -----------------------------------------------------------------------
    Mr. Fall

    Under current law, a property owner has to post the property at each public entrance to be effective under 39-17-1359. The owner/manager can no longer simply "announce" their intent.

    However, a property owner/manager can give an individual a criminal trespass notice verbally or in writing (a sign would work) and if someone violates that notice, then the person could be charged with criminal trespass which is a crime separate but similar to from 39-17-1359.

    John Harris
    --------------------------------------------------------------------

    So the way it looks to me, even with out a sign a property owner can still efectivly ban you from his property while armed under the trespass statute.
    “Because when seconds count, the police are only minutes away”

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  9. #8
    When I called the department of Safety with questions the lady I talked with said they could verbally tell you that you could not carry a handgun on their property. I asked if that was actually violating the TN carry codes or would simply be a trespassing charge. She said it would be trespassing only. This appears to agree with what they have told you. (one of the few things I think she got right).

    Thanks again!
    David

    The only person available to protect you 24 hours a day is you.

  10. The bad, then the good.

    The following is just my opinion, but I'm entitled to it:


    You know... this just proves at least one thing to me.

    Wording law in such a fashion that the ability to (clearing throat) "adjust" it to meet the demands of the future, so that it won't be compromised, is one thing. However, when you word law in such an unclear language as to have the Judicial and Legislative branches of our own state government disagree on it's very intent, that is a COMPLETELY different subject!

    Clarity. Precision. Concise Structure.
    Who decided to throw out these attributes? Was I on vacation when this decision took place? Did I miss the memo?

    Finding an accurate definition to some of this code is like gambling on a thrown penny landing heads or tails.

    Understanding our own laws really shouldn't need to be this complicated. It should be pretty easy. It really IS fairly simple, when you get right down to it. We shouldn't have to be re-interpreting laws that were written as recent as the last decade.

    Forget lobbying for second amendment rights in this state. We need to lobby just to have the rights we currently possess be refined so that they're understandable; not just for the common Joe Taxpayer, but for all 3 branches of our government officials!

    Yeah, I'm a little frustrated. I guess I just needed to vent a little, too. The truth is that I'm very thankful to persons such as Steve Fall and Dr. David, who have taken the initiative to get our laws clarified and, in some cases, simply defined.

    I don't wear hats. But if I did, I would gladly tip it in your favors, gentlemen. Thank you for keeping us updated, as well.

    Travis

  11. #10
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    tadams....you are most definetly right. I think "some" of the problem is that some laws were on the books before there was ever such a thing as a Handgun Carry Permit. I'm sure the legislatures at the time tried to find and address each law that would be affected when they decided to issue them, but I think they missed some or still didn't fully consider some.

    Anyway....I do believe, as do many others, the laws concerning these matters need to be completely reworked. One thing I think all can do is call there Senator and/or Rep in Nashville, tell them how the feel, that some of the laws are not clear. That the laws the prevent carry in certain places are spread all over the part of the T.C.A. Ask them when/if there are efforts to rework the statutes, to support those efforts.

    Oops...did I get on the soapbox for a minute? :D
    “Because when seconds count, the police are only minutes away”

    Posting in …….
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