New TN AG Opinion (16-29) regarding interplay of Tenn. Code Ann. Sec. 39-17-1309, -1311, and -1313; Scope of the phrase “while in use by” in the context of Tenn. Code Ann. Sec. 39-17-1309.

The Tennessee Attorney General issued on July 27, 2016, Opinon 16-29 in which it has responded to the following questions:


Interplay of Tenn. Code Ann. §§ 39-17-1309, -1311, and -1313; Scope of the phrase “while in use by” in the context of Tenn. Code Ann. § 39-17-1309.

Ouestion 1

Does Tenn. Code Ann. § 39-17-1313 (2013) take priority over Tenn. Code Ann. § 39-17-1309 with reference to storage of weapons in vehicles on school grounds?

Oninion 1
Yes, to the extent Tenn. Code Ann. §§ 39-17-1309 and 39-17-1313 (2013) are in conflict, the provisions of 39-17-1313 (2013) take precedence over the conflicting provisions of § 39-17-1309.

Ouestion 2
After the 2014 amendments to Tenn. Code Ann. § 39-17-1313, does Tenn. Code Ann. § 39-17-1313 still take priority over prohibitions on gun storage in Tenn. Code Ann. §§ 39-17-1309, -1311, and -1359?

Opinion 2
Yes. The 2014 amendment to Tenn. Code Ann. § 39-17-1313 broadened the previous exception to the prohibition of the storage of firearms and firearm ammunition, but did not otherwise change the relationship among the various sections of the statute.

Ouestion 3
Does the language “or while in use by” in Tenn. Code Ann. § 39-17-1309, as amended in 2015, apply when no students or personnel of the school are present on the property in question?  For instance, if a school simply stored equipment or supplies on private property, would Tenn. Code Ann. § 39-17-1309’s prohibitions apply to that private property?

Opinion 3
Yes, the phrase “or while in use by,” in the context of Tenn. Code Ann. § 39-17-1309 as a whole, applies even when students or school personnel are not present on the property. Thus, gun possession would be prohibited on property used to store equipment or supplies by an educational institution specified in the statute.

While the answers to the first two questions are helpful and indicate a positive change in the statutes (if courts agree with the Attorney General), the conclusion reached regarding the “while in use by” provision confirms a concern held by TFA that the Legislature has once again passed language that was poorly worded, thought out or reasoned. The Attorny General commented:

According to the plain language of the statute, this prohibition applies even when no students or school personnel are present in or on the property being used by the educational institution because the “use” of property in this context is not limited to the physical occupation of property by people. A school may use its own or other property or buildings for storage of materials with no people present, just as a classroom in a school is used by the school whether or not a class is being conducted at any particular time. Both uses fall within the natural and commonly understood meaning of “use.” See Grffis v. Davidson Cnty. Metro Gov’t,164 S.V/.3d 267, 283 (Tenn. 2005) (discussing storage as use of property for school purposes); Michael v. Jakes,No. M1999-02257-COA-R3-CV, 2002WL 1484448, at *8 (Tenn. Ct. App. Iuly 12,2002) (noting property was used to store vehicles), perm. app. denied (Tenn. Dec.2,2002).

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This reading is, moreover, consistent with the Tenn. Code Ann. § 39-17-1309 statutory scheme as a whole. Possession of guns is prohibited in any public or private school building or on any public or private school grounds owned, or operated, or while in use by an educational institution. The only exception is gun possession for instructional or ceremonial purposes. There is no exception for property that is unoccupied by students or school personnel, although the legislature easily could have included such an exception had that been its intent. On the contrary, the statute taken as a whole indicates a legislative intent, subject to the motor vehicle parking area exception established in Tenn. Code Ann. § 39-17-1313 (see Opinion 1 and Opinion2, above), to ban guns and other weapons at all times from all property owned or used by a school whether or not people are present on or in the property.

So, once again, we will have to see if the Legislature realizes the extent of the confusion it has created, whether these are possibly unintended consequences or if the bill drafters and sponsors actually intended to create these “felony traps” in public parks for otherwise lawful conduct.

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