Counties and cities banning guns in parks don't have to post signs

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Attorney General Opinion concerning lack of signs at parks. Best bet may be to not not carry in a park at all until the Legislature fixes this preemption garbage.

New opinion as of 9-22-09 09-158.

Question 6

"If a county or municipality chooses to prohibit the carrying of firearms in parks which



[align=left]they own, could a permit holder be convicted of violating Tenn. Code Ann. § 39-17-1311 if such[/align]county or municipality failed to comply with the posting requirements set forth in Chapter 428?"



Opinion 6





[align=left]"A handgun carry permit holder who carries a firearm into a county or municipal park[/align]

[align=left]where the county or municipality has prohibited such carrying could still be convicted of[/align]

[align=left]violating Tenn. Code Ann. § 39-17-1311 even if such county or municipality failed to comply[/align]with the posting requirements that are set forth in section 2(e)(2) of Chapter 428."



Analysis 6





[align=left]"You ask if a handgun carry permit holder could be convicted of violating Tenn. Code[/align]


[align=left]Ann. § 39-17-1311 for carrying a firearm into a county or municipal park where such carrying is[/align]


[align=left]prohibited if the county or municipality failed to comply with the posting requirements that are[/align]


[align=left]set forth in Chapter 428. In the prosecution of a criminal case, the State bears the burden of[/align]


[align=left]proving every element of an offense. State v. Dotson, 254 S.W.3d 378 (Tenn. 2008). The[/align]


[align=left]question is thus whether proof that such signs were properly posted is an element of the offense.[/align]


[align=left]If the failure to post signs in a park where the carrying of firearms is prohibited is such an[/align]


[align=left]element, then a carry permit holder could not be convicted of violating Tenn. Code Ann. § 39-[/align]


[align=left]17-1311 if the state failed to prove that such signs were posted. On the other hand if proof of[/align]


[align=left]such posting is not an element, then a handgun carry permit holder could be convicted of[/align]


[align=left]violating Tenn. Code Ann. § 39-17-1311 even if the county or municipality that has prohibited[/align]


[align=left]the carrying of firearms in parks which they own has failed to post the required signage.[/align]


[align=left]State v. Brooks, 741 S.W.2d 920 (Tenn. Crim. App. 1987), is directly on point. In that[/align]


[align=left]case, the court held that the failure of a school to satisfy the sign posting requirements was not a[/align]


[align=left]defense to a charge of carrying a firearm on school grounds. The court concluded that the sign[/align]


[align=left]posting requirement was not an element of the offense. Applying the reasoning in Brooks to[/align]


[align=left]Tenn. Code Ann. § 39-17-1311, as amended by Chapter 428, the posting of signs in parks where[/align]


[align=left]the carrying of firearms is prohibited is not an element of a violation of Tenn. Code Ann. § 39-[/align]


[align=left]17-1311. A handgun carry permit holder could therefore be convicted of violating Tenn. Code[/align]


[align=left]Ann. § 39-17-1311 for carrying a firearm into a county or municipal park, where such carrying is[/align]
prohibited, even if such county or municipality failed to post the required signs."


The AG points to State v. Brooks, 741 S.W.2d 920 (Tenn. Crim. App. 1987). TCA 39-17-1309 states that the school grounds shall be posted in prominent locations about a school. When was the last last time you saw a sign posted at a school? My daughters school has 1 sign inside the building and it isn't posted in a prominent location. The opinion sucks, but it does make sense.

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Looks like the burden is placed squarely on the carrier, to know if carrying of firearms is prohibited in county/city parks, or not.

In my county, we don't have but a couple county parks. Both are ball parks mainly and the county did not go the opt-out route. However, the local schools use the ball parks for their baseball and softball events, which would make the parks off-limits during those events. Other athletic leagues that use the facilities may have their own prohibitions that would be enforceable as well.

I had spoekn to one of the county commissioners about whether the county was goihng to opt-out or not and he told me that they hadn't even discussed it and didn't expect the county to do anything about it. He also has a HCP.