TN AG Opinion 09-158: Some deciphering help, please

[GKar]

Can those better versed in the art of interpreting legalese help with deciphering our dear AGs most recent missive, particularly his response to question 6 RE seemingly indicating that someone can be convicted of possessing a firearm in a carry-prohibited local park even if the park is not properly posted?

His analysis as found in the cited opinion:

"6. You ask if a handgun carry permit holder could be convicted of violating Tenn. Code Ann. § 39-17-1311 for carrying a firearm into a county or municipal park where such carrying is prohibited if the county or municipality failed to comply with the posting requirements that are set forth in Chapter 428. In the prosecution of a criminal case, the State bears the burden of proving every element of an offense. State v. Dotson, 254 S.W.3d 378 (Tenn. 2008). The question is thus whether proof that such signs were properly posted is an element of the offense. If the failure to post signs in a park where the carrying of firearms is prohibited is such an element, then a carry permit holder could not be convicted of violating Tenn. Code Ann. § 39-17-1311 if the state failed to prove that such signs were posted. On the other hand if proof of such posting is not an element, then a handgun carry permit holder could be convicted of violating Tenn. Code Ann. § 39-17-1311 even if the county or municipality that has prohibited the carrying of firearms in parks which they own has failed to post the required signage.

"State v. Brooks, 741 S.W.2d 920 (Tenn. Crim. App. 1987), is directly on point. In that case, the court held that the failure of a school to satisfy the sign posting requirements was not a defense to a charge of carrying a firearm on school grounds. The court concluded that the sign posting requirement was not an element of the offense. Applying the reasoning in Brooks to Tenn. Code Ann. § 39-17-1311, as amended by Chapter 428, the posting of signs in parks where the carrying of firearms is prohibited is not an element of a violation of Tenn. Code Ann. § 39-17-1311. A handgun carry permit holder could therefore be convicted of violating Tenn. Code Ann. § 39-17-1311 for carrying a firearm into a county or municipal park, where such carrying is prohibited, even if such county or municipality failed to post the required signs."

[David Lewis]

I think he also opined that the weather has been dry & sunny this week, too.

David

[GKar]

LOL...one wonders if he has to have a map to go to the bathroom...

[Mousegun]

[C. Richard Archie]

It appears that the level of government that has to be supported, or changed, is the local entity that gets to vote on the "opt out" portion. The legislature has put forth the rules, now the Citizenry has to get involved and let the Councilpersons or Alderpersons know that if they usurp the Right to self protection, those same folks will lose their positions.

If we can not affect that, we are doomed as a society. The 2nd Amendment is so very important for the protection of the rest of our Rights, if we can not protect IT, all the rest are short lived as well.

[C. Richard Archie]

In further thougth about this one, I will not have to Post my farm against "No Hunting" this year, and anyone found on my property should be prosecuted for tresspasing, and if they are armed, criminal trespass. None of that silly every 100 yard stuff, all I should have to do is intend for my land to be private property, and that should be that. I am sure the local Sheriff and the TWRA will love this.

[macville]

[I posted this on another forum, but thought you all might want to read it also]

Okay, so had a thought about this issue this morning. The AG says even thought the law REQUIRES signs to be posted if a county has opted-out, if they don't post, you can still be charged if caught carrying in one of the opted-out parks.

So let's think about this... does this mean that if a city decides that the speed limit on a street should only be 25 mph, but doesn't post a sign with that limit that any cop which finds me going over 25 mph can stop and give me a ticket? Even though speed limits are different on every road?

Does it mean that if someone doesn't post a legal sign (doesn't post anything period), but in their "mind" has decided that it's illegal to carry in their store, does that mean that you could be charged under going armed because they decided that it was "illegal" but did not follow the law and post like they legally are supposed to?

Do you see the problem here? It the AG saying that WE have to follow the law but THE GOVERNMENT doesn't have to follow what IT passed.

My question now is, how can we sue about this? I believe that it is illegal for a resolution to be on the books that doesn't fully follow the law. Hopefully a lawsuit would lead to a change in the law that postings for businesses, schools, parks, etc have to be exactly in accordance with the law, or otherwise we can't be charged when carrying there. I AM SICK of being the bad guy and trying to follow the law when the government that writes the law won't follow it.

Matthew

[Grunt67]

"If" my memory serves me correctly, a few years ago, we had the same issue with carrying into an establishment
that sold alcohol, ie..a convenience store. Some didn't post, but you had to "somehow" know their intent. The law
was finally changed.
This current "opinion" can be a trap. Can't see this holding up in court. Doesn't cost an arm & leg to post a &%#&
sign anywhere. JMHO

[macville]

[C. Richard Archie]

If you have land that you manage for hunting, sinking the work and dollars into a place for you and your family to enjoy, and then have it overrun with other folks who take advantage of your ownership and labor to walk in or drive in as has happened on occasion to me, call the game warden and see what help you get from them.

I have major dollars tied up in Postings, and a lot of work, to have them ripped down or paid no attention to. However, the Legislature has a requirement that a Landowner must satisfy, so I go through the motions and spend the bucks. Now the AG says that municipalities do not have to abide by the laws?

I say that either it is all or none.

[johnharris]

Let me start by stating that the current Tennessee Attorney General never seems to surprise me with the outcome oriented approach that he and his subordinates take to impairing at every possible opportunity the rights of civilians - not just in the area of self-defense and handgun permit holders - but in almost all areas of public concern.

Now, the nuance that the attorney general is trying to exploit is this along this line:

1) A criminal statute defines specific elements to a crime such as a) possession of a firearm b) in a park c) when no exemption exists relative to that park.

2) The issue of posting a sign is not one of the elements of the crime . For example, the statute does not prohibit possession in parks that are posted. If it did, then the posting issue in item b) above would be "in a properly posted park".

now, a court can disagree with the attorney general and find that the intent of the law was "posted parks" not just parks but the attorney general's opinion gives the maximum opportunity for the prosecution of handgun permit holders until such time as someone spends the money to go to the court of appeals and get it clarified and/or the state legislature repeals local option. I think the most cost effective will be through the legislature.

[ProguninTN]

[backwoodsman]

The old ignorance is no excuse for the law.(unless your a cop or an elected official,and you haven't pissed off the cop or the elected official who caught you ). We have no smoking signs, no swimming signs ,no trespassing signs,right to refuse service signs,must be 21yrs old to enter signs, all signs to make sure any prosecution concerning disregarding a law, is upheld. Ok, work with me here,, so we pass a law to be able to carry in parks, however because of leftist pressure an opt out clause is added, or am I wrong, if it says opt in or out, then that's just dumb as hell, but if it were only written as opt out, then those municipalities opting out, are the ones who chose to take that hard left turn away from the intention of that law, and therefore in my little simple mind, I believe it is incumbent upon them to provide signage to demonstrate their intent in such a way that it cannot be missed by anyone they would possibly seek to prosecute. perhaps they can talk to bredeson or serpas and borrow some money from that fund they used to bus all those supposed off duty cops to the capitol , in the spirit of good will of course.It seems there is a lot of, do as I say, not as I do , going on in both the federal and state levels, and not enough anger or uprising from the real bosses,, uh , namely the citizens.I got my sleeves rolled up,and that means nothing now, cause even if your right, your out the money in court, but they just spend our money in court against us, so, yeah, we need some legislative fixin. sorry about the lengthiness, but sometimes it helps to see the dog chase his tail around the tree, before he finally stops,hikes his leg and ,, well you know.As bad as it sounds and as stupid as it is because it has nothing to do with mutual respect or common sense, we simply must beat them at their own game.

[oldhack62]

[C. Richard Archie]

No sir, any entity can opt in or out, at any time, under the current legislation. Simply put, the Resolution to "Opt Out" had to be passed prior to Sept. 01, 2009, or the law allowing HCP carry went into effect. But the various entities can take up the issue at any time, either way, in or out, and as many times as they deem necessary, there is no provision saying that once out, always out, or once in, always in.