Monday, October 24, 2016

Parks lawsuit against City of Knoxville gains standing*

Why would the Tennessee Firearms Association (TFA) support a lawsuit against the City of Knoxville over the weapons ban at Chilhowee Park? Why go to all the trouble and expense?

Why stir up this trouble, when all the City is asking citizens to do is refrain from carrying weapons into Chilhowee Park at any time, including during the Fair?
A park is not a park you see,
If its name begins with Chilhowee!

Gangsters are unlikely to
honor NO GUNS signs, either.

Some ask, shouldn't the City be able to implement such bans? After all, it belongs to the City.

Hold on there, not so fast. Let's have a short lesson in American Government-


  1. The states (former colonies) came together to form the Federal Government, and the states charter local governments. 
  2. Cities, towns and counties are created by the states, and are subject to state law.
  3. The City of Knoxville is a subdivision of the State of Tennessee, and Tennessee law is superior to Knoxville City Ordinances.

Now, a short history lesson-

Historically, since the reconstruction era, state and local governments have imposed and expanded bans on who may carry a weapon and where weapons might be carried. The reconstruction bans in the South, known as Black Codes, were primarily rewrites of ante-bellum Slave Codes. They were directed only at freed black citizens. Over the passage of time, these codes were determined to be unconstitutional, so they were re-written to include everyone.

The net result was that the black letter law said that no one was allowed to carry a defensive firearm. However, the sheriff in the county I lived in when I first came to Tennessee (1982) knew that I carried one; I had the wink and nod from him.

Meanwhile, in Knoxville, a weapons carry ban was implemented in 1962, during the height of the Jim Crow era. Some believe this was aimed squarely at black citizens.

Fast forward to 1987. Florida passed the first "modern" shall-issue handgun permitting system, setting the tone for such laws to eventually roll out over the entire United States. Tennessee's shall-issue permitting system began in the early 1990's.

In the years since shall-issue was passed in Tennessee, more and more spaces have been removed from prohibited zone restrictions. Those include convenience stores, churches, parking lots, and in 2009, parks.

In 2009, state parks were removed as prohibited zones, but the bill passed that year allowed local governments to opt-out and maintain their parks prohibitions. The City of Knoxville and the Town of Farragut both opted out; Knox County conformed to the state model.

I was there to witness Knox County, led by Commissioner (now Senator) Richard Briggs, M.D., adopt the state model.

I also was at the Knoxville City Council meeting, when Mayor (now Governor) Bill Haslam seemed, in a rather long speech, to make the case for conforming to the state model; but then urged the City Council to continue with their ban! The City Council agreed, and retained their decades old ban.

In 2015, Tennessee revisited the parks carry law, and removed local governments' opt-out power.

In July 2015, the Tennessee Attorney General, in response to a query from State Senator Lee Harris, said that -
After the enactment of Chapter 250, municipal and county governments no longer have the option of prohibiting the possession of handguns carried by individuals with valid handgun carry permits in public parks and other recreational facilities. 
Now, back to the Chilhowee Park lawsuit-

I became aware of the continued ban for permit holders in Chilhowee Park around the time of the 2015 Fair. I contacted Chief Rausch of the Knoxville Police Department. He referred me to Scott Suchomski of the Fair, who informed me that the ban was to continue in force.


I did not want to risk arrest and jail, so I chose not to go to the Fair in 2015. My co-plaintiff, Kimberly Bergeron went to the fair, but remained unarmed.

In February of 2016, through the sponsorship of TFA, and with attorney Andrew Fox, we filed suit against the City of Knoxville, the mayor, Chief Rausch, and the Fair.

The City asserted that we did not have standing, since neither plaintiff had been arrested, threatened with arrest, etc. This led to a hearing on August 22, 2016 to determine our standing.  At the hearing, Michael S. Kelley, the city's attorney stated-
...The person would come to the fair, ... , they would be searched, and they would be told you can't come in because you have a handgun. If they'd done that, they'd have standing... (emphasis added)
The judge heard both sides, then informed us he would take it under advisement, and render an opinion.

In late August, a plan came together to take action that would foreclose even the argument that we Plaintiffs in the lawsuit had no standing.  A group of us would go to the fair, and someone armed would get turned away. That is exactly what we did.

We went to the fair.  After some talk with another KPD officer about a person with a carry permit entering the Fair while armed, I sought Chief Houk to accompany me to the public sidewalk near a Fair entrance, where those with carry permits who were armed waited.  He informed the group that anyone who attempted to enter with a handgun would be subject to arrest, as reported by this article in the Knoxville News-Sentinel.

Where do we go from here?

Now that standing has been established, we get to the meat of the suit. Is Chilhowee Park a public park or other recreational facility?

We believe so. We believe the plain language reading of the statute strongly supports our position:
39-17-1311(b)(1) 
(H). (exception) 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;
We believe the Attorney General's opinion referenced above strongly supports our position:
Reading Chapter 250 in light of prior law leaves little room for doubt that the legislature intended to remove from counties and municipalities the option they had before the effective date of Chapter 250 to prohibit holders of valid handgun carry permits from possessing handguns in parks and other recreational facilities owned by those governmental entities. By repealing subsections(c), (d), and (e) and removing the companion language in subsection (b)(1)(H), the legislature clearly and unambiguously removed any option or authority that counties and municipalities formerly had to prohibit a handgun carry permit holder from possessing a handgun in a park or other recreational facility. 
We hope the Court agrees. . .

You can help in this and future legal endeavors by joining TFA, then making a members only donation at TFA's website.

---------------
*Standing to sue, in law, the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved. . . .

11 comments:

  1. Standing should be granted even if you never attended he fair while armed. The fact that you were intimidated by the local police chief by the threat of arrest if you entered the fair while legally armed under State law so that you chose to surrender your civil right to attend the fair means the government denied you that right.

    ReplyDelete
  2. Great work, Liston and TFA! If you are a Tennessean who values your Second Amendment Rights, please join the Tennessee Firearms Association.

    ReplyDelete
  3. Even the STATE ATTORNEY GENERAL agrees.
    When officially asked to answer questions having to do with the extent and depth of the 'Parks Carry' law he released this as his official opinion:


    STATE OF TENNESSEE
    OFFICE OF THE
    ATTORNEY GENERAL
    July 29, 2015
    Opinion No. 15-63
    Possession of Firearms in Public Parks Owned by Counties and Municipalities
    Question 1
    If a municipality that owns a public park contracts with a nonprofit corporation to operate
    that park on behalf of the municipality,
    does the park lose its status as a “public park” so that the nonprofit corporation may
    prohibit holders of valid handgun carry permits from possessing handguns within that park
    ?
    Opinion 1
    No. The property retains its status as a public park, and the nonprofit corporation that
    contracts with a county or municipal government to operate a park, playground, civic center, or
    other facility owned by the county or municipality
    may not prohibit holders of valid handgun carry
    permits from possessing handguns on the premises.

    Question 2
    If the nonprofit corporation that contract
    s to operate a public park on behalf of a
    municipality does not have the authority to prohibit the possession of firearms within the park, and if the nonprofit corporation permits or authorizes a third party, by lease or contract, to use the park for a specific event or for a set period of time, may the third party prohibit holders of valid handgun carry permits from possessing handguns within the park for the duration of that event?
    Opinion 2
    No. A third party that obtains any authorization from a contracted nonprofit operator for the
    temporary use of a park, playground, civic center, or other facility owned by the county or municipality may not prohibit holder
    s of valid handgun carry permits from possessing handguns on the premises.
    2

    Question 3
    Does a public park lose its status as a “
    public park” if a municipality or nonprofit
    corporation operating the park on behalf of the municipality charges a fee to members of the public to enter or use the park?
    Opinion 3
    (I will try to post he rest of this opinion in follow-up posts due to size limitations)

    ReplyDelete
  4. - Part 2-

    No. Question 4
    Does a public park lose its status as a “ public park” if, in addition to charging an entry or
    use fee, the municipality or nonprofit corporation that operates the park on
    behalf of the municipality erects a fence or other barrier around the premises?
    Opinion 4
    No.
    ANALYSIS
    Tennessee Code Annotated § 39-17-1311(a) makes it a criminal offense for any person to possess or carry certain weapons, including hand guns,“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.”
    Subsection (a) does not apply, however, to “[p]ersons 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 thereof .” Tenn. Code Ann. § 39-
    17-1311(b)(1)(H).
    Thus, because of the exception in subsection (b)
    (1)(H), it is not an offense for persons with valid handgun permits to carry handguns in public parks.
    You have asked, in essence, whether the operation of a city-owned public park by a private company will change the status of the park from public to non-public so that that the exception insubsection (b)(1)(H) would not apply and guns could be banned in parks operated by a private company under subsection (a). You have asked, along those same lines, whether charging an entry or use fee or physically limiting access to a public park would make the park non-public and, therefore, not subject to the exception. When construing a statute
    , the primary object is to give effect to the intent of the legislature. Morgan Keegan Co., Inc. v. Smythe, 401 S.W.3d 595. 602 (Tenn. 2013). If the statutory text is clear and unambiguous, legislative intent is to be found in the ordinary and natural meaning of the 3
    statutory language.
    Nye v. Bayer Cropscience, Inc.,
    347 S.W.3d 686, 694 (Tenn. 2011).
    If legislative intent can be found in the plain meaning of the statute, courts will “neither alter or amend statutes nor substitute their own policy judgments for those of the General Assembly.” Armbrister v. Armbrister, 414 S.W.3d 685, 704 (Tenn. 2013). A court will not find a statute to be ambiguous unless the language “is capable of conveying more than one meaning.”Sallee v. Barrett
    , 171 S.W.3d 822, 828 (Tenn. 2005).
    See also, State v. Hannah, 259 S.W.3d 716, 721 (Tenn. 2008).
    “As a general rule of statutory construction, a change in the language of a statute indicates
    a departure from the old language was intended.”
    Lavin v. Jordon, 16 S.W.3d 362, 369 (Tenn.
    2000). When a statute has been amended, it should “be construed with reference to pre-existing
    law and should not be interpreted to change it further than the express terms or necessary implications.” State v. Bowery,
    189 S.W.3d 240, 248 (Tenn. Crim. App. 2004).
    The exception set out in subsection (b)(1)(H) was amended, effective April 6, 2015, by Chapter 250 of the 2015 Public Acts of Tennessee. Before that amendment, persons who possessed valid handgun carry permits were, likewise, excluded from the scope of subsection (a) and were, therefore,

    ReplyDelete
  5. As a general rule of statutory construction, a change in the language of a statute indicates a departure from the old language was intended.”
    Lavin v. Jordon, 16 S.W.3d 362, 369 (Tenn. 2000). When a statute has been amended, it should “be construed with reference to pre-existing law and should not be interpreted to change it further than the express terms or necessary
    implications.” State v. Bowery,189 S.W.3d 240, 248 (Tenn. Crim. App. 2004).
    The exception set out in subsection (b)(1)(H) was amended, effective April 6, 2015, by Chapter 250 of the 2015 Public Acts of Tennessee. Before that amendment, persons who possessed valid handgun carry permits were, likewise, excluded from the scope of subsection (a) and were, therefore, conditionally authorized to carry handguns in public parks, playgrounds, civic
    centers, and other facilities owned, used, or operated for recreational purposes by the state or any county or municipal government. Tenn. Code Ann. § 39-
    17-1311(b)(1)(H) (2014). At the same time, however, the municipal or county government could opt to prohibit the possession of handguns carried by individuals with valid handgun carry permitsin parks and other recreational
    facilities by following certain procedures specified in Tenn. Code Ann. §§ 39-
    17-1311(c), (d), and (e). After the enactment of Chapter 250, municipal and county governments no longer have the option of prohibiting the possession of handgunscarried by individuals with valid handgun carry permits in public parks and other recreational facilities. The legislature eliminated this option by
    repealing Tenn. Code Ann. §§ 39-17-1311(c), (d), and (e) and by deleting the phrase “except as otherwise provided in subsection (d)” from subsection (b)(1)(H). 2015 Public Acts of Tennessee, Ch. 250, § 1, § 2.The language of Tenn. Code Ann. § 39-17-1311 in both its prior version and as amended
    by Chapter 250 is clear and unambiguous. Reading Chapter 250 in light of prior law leaves little room for doubt that the legislature intended to remove from counties and municipalities the option they had before the effective date of Chapter 250 to prohibit holders of valid handgun carry permits from possessing handguns in parks and other recreational facilities owned by those governmental entities. By repealing subsections(c), (d), and (e) and removing the companion language in subsection (b)(1)(H), the legislature clearly and unambiguously removed any option or authority that counties and unicipalities formerly had to prohibit a handgun carry permit holder from possessing a handgun in a park or other recreational facility. By its terms, Tenn. Code Ann. § 39-17- 1311 applies “in or on the grounds of any publicpark, playground or civic center or other building facility, area or property owned, used or operated

    ReplyDelete
  6. by any municipal county or state government, or instrumentality thereof, for recreational 4 purposes.” Tenn. Code Ann. § 39-17-1311(a). The statute
    does not make any exceptions for facilitiesthat are owned by a county or municipality but are operated under contract by a nonprofit corporation
    or other non-governmental entity.It makes no exception forfacilities that charge
    admission or user fees orfor facilities that have fences or other barriers to control ingress and egress. Applicability of the statuteis not limited to normal or customary hours of operation of the facilities, and there is noexception for facilities that may be temporarily used for special events with limited ttendance.“It is a well settled principle of law that one cannot do indirectly what cannot be done directly.”
    Haynes v. City of Pigeon Forge,
    883 S.W.2d 619, 622 (Tenn. App. 1994).
    Since counties and municipalities cannot use direct means to prohibit handgun
    possessionby individuals with valid handgun carry permitsin their parks, they cannot use indirect means--such ascontracting with nonprofit entities to
    disallow the possession of such handguns in their parks or other recreational facilities.It is likewise well established that onecannot transfer something one
    does not possess. See, e.g., Lisenbee v. Parr, 465 S.W.2d 361, 365 (Tenn. App. 1970). Since a county or municipality no longer has the authority to prohibit handgun carry permit holders from possessing handguns in public parks and other recreational facilities, a county or municipality cannot conveyor delegate
    any such authority to anyone else, either directly or indirectly.
    By its plain terms,as amended, Tenn. Code Ann. § 39-17-1311 applies to all parks and all other recreational facilities that are owned or operated by a county or municipality. County or municipal ownership is all that is needed to bring the property within the scope of the statute. Whether a fee is charged for us
    e or admission or whether use or admission is free of charge is irrelevant. Likewise, it is irrelevant whether access is controlled by physical barriers or not. Moreover, an admission or use charge or a fence would not cause a
    publicpark or otherpublicfacility to lose its statusas a public park or public
    facility. The term “public” commonly connotesproperty that has been set aside or is used to serve the state, county, or municipality as a whole as opposed property used for private gain. See,Webster’s Ninth New Collegiate Dictionary,
    at 952 (1988). The nature or character of the facility thus depends upon its purpose or the reason for its existence. The fact that admission or use fees may be charged does not alter the public character of a public facility. For example,

    ReplyDelete
  7. the legislature has from time to time authorized the construction of toll roads and bridges. Those roads and bridges were intended to serve the public
    at large. That purpose is not changed bythe imposition ofthe costs of construction and maintenance on those who use them. See, e.g., Montgomery County Clarksville & Russellville Turnpike Co.,109 S.W. 1152 (Tenn. 1908). State parks provide another example. Fees are chargedto use campgrounds
    , golf courses, and other recreational facilities and to stay in lodges or
    cabins that are located within stateparks. Such facilities do not lose their public character because the fee or other charge is imposed to defray the cost of providing the services offered and maintaining the properties. Nor does the presence of gates, fences, orother barriers destroy the public character of a
    park or other public facility. Many municipal and county parks and other recreational facilities 5 are notalways open on a 24/7 basis. They often
    have set days and hours of operation and commonly use locked doors
    or gates and wallsand fencesto control access and to secure the property when it not in operation. Public swimming pools are a prime example, as are dog parks. Controlled and limited access to swimming pools is, indeed, mandatory for safety reasons, but that does not make the swimming pool non “public.”
    In short, a park or other facility will not lose its public character simply
    because access is limited or controlled either physically or by the
    imposition of a fee.
    HERBERT H. SLATERY III
    Attorney General
    and Reporter
    ANDRÉE SOPHIA BLUMSTEIN
    Solicitor General
    MICHAEL A. MEYER
    Deputy Attorney Genera

    ReplyDelete
  8. Arms control of the people is not an enumerated power!

    video on arms, here it is: https://vimeo.com/60944105

    State concealed carry laws which require a "permit" is an idea crafted in the pits of hell. The real purpose is to register gun owners! People think it is so cool to have a permit for concealed carry - they don't understand that it is like the free sample of heroin.



    ReplyDelete
  9. Look up Preemption: Localities are specifically prohibited from passing any law,rule, ordinance etc etc that concerns carrying firearms. Period. Doesn't matter if they ban CC or OC, they are not allowed to ban either one. If they pass such a law, they are in for a field day of lawsuits.

    ReplyDelete
  10. They have no lawful authority to ban an American from bearing arms in a public place.

    ReplyDelete
  11. Anonymous: yes, that is the point of the lawsuit. They have no authority to do it, but they are claiming they do. This is the only way to make them knock it off.

    ReplyDelete

Please maintain civility and G-rating on comments.